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EXHIBIT 10.73
AMENDED AND RESTATED
REVOLVING CREDIT
AND
REIMBURSEMENT AGREEMENT
by and among
CAPSTONE CAPITAL CORPORATION
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH),
AMSOUTH BANK OF ALABAMA,
CREDIT LYONNAIS NEW YORK BRANCH,
NATIONAL CITY BANK, KENTUCKY,
CREDITANSTALT CORPORATE FINANCE, INC.,
THE BANK OF NOVA SCOTIA,
FIRST COMMERCIAL BANK,
THE SUMITOMO BANK, LIMITED, as Lenders
and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), as Agent
June 24, 1996
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Terms
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.03 UCC Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE II
The Loans
2.01 Revolving Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.02 Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.03 Payment of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.04 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.05 Pro Rata Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.06 Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.07 Increase and Decrease in Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.08 Conversions and Elections of Subsequent Interest
Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.09 Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.10 Deficiency Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.11 Adjustments by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.13 Extension of Revolving Credit Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.14 Swing Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
Letters of Credit
3.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.02 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.03 Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.04 Administrative Fees and Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.02 Suspension of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.04 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.05 Alternate Loan and Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.06 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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ARTICLE V
Conditions of Closing, Making Loans and Issuing
Letters of Credit
5.01 Conditions of Closing, Initial Advance and
Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.02 Conditions of Further Loans and Issuance of
Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VII
Affirmative Covenants
7.01 Financial Reports, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.02 Maintain Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.03 Existence, Qualification, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.04 Regulations and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.05 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.06 True Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.07 Pay Indebtedness to Lenders and Perform Other
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.08 Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.09 Observe all Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.10 Covenants Extending to Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.11 Officer's Knowledge of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.12 Suits or Other Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.13 Environmental Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.14 Notice of Discharge of Hazardous Material or
Environmental Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.15 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.16 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.17 ERISA Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.18 REIT Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.19 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.20 New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.21 Swap Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE VIII
Negative Covenants
8.01 Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.02 Consolidated Interest Coverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.03 Consolidated Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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8.04 Consoliated Senior Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.05 Consolidated Fixed Charge Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.06 Required Coverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.07 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.08 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.09 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.10 Investments; Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.11 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.12 Merger or Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.13 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.15 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.16 Dissolution, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.17 Rate Hedging Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.18 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.19 Investment Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.20 Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.21 Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
9.02 Agent to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.03 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.04 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.05 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.06 Allocation of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X
The Agent
10.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.02 Attorneys-in-fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.03 Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.04 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.06 No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.07 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.08 Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.09 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.10 Sharing of Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.11 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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ARTICLE XI
Miscellaneous
11.01 Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.03 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.04 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.05 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.06 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.07 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.08 Waivers by Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.09 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.11 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.12 Headings and References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.14 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.15 Agreement Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.16 Usury Savings Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
EXHIBIT A Applicable Commitment Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
EXHIBIT B Form of Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative . . . . . . . . . . . . . . . . . . . 103
EXHIBIT D-1 Form of Borrowing Notice--Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
EXHIBIT E Form of Interest Rate Selection Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
EXHIBIT F-1 Form of Revolving Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
EXHIBIT F-2 Form of Swing Line Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
EXHIBIT G Form of Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
EXHIBIT H Form of Opinion of Borrower's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
EXHIBIT I Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Schedule 1.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Schedule 6.01(d) Subsidiaries and Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Schedule 6.01(f) Contingent Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Schedule 6.01(j) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Schedule 6.01(s) Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Schedule 7.05 Existing Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Schedule 8.10 Loans and Investments (in addition to Schedule 6.01(d)) . . . . . . . . . . . . . . . . . . . . 134
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AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AND REIMBURSEMENT
AGREEMENT, dated as of June 24, 1996 (the "Agreement"), is made by and among:
CAPSTONE CAPITAL CORPORATION, a Maryland corporation having its
principal place of business in Birmingham, Alabama (the "Borrower"); and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), a national banking
association organized and existing under the laws of the United States of
America and having its principal place of business in Atlanta, Georgia
("NationsBank"), the Lenders signatory hereto and each other lender which may
hereafter execute and deliver an instrument of assignment with respect to this
Agreement pursuant to Section 11.01 (hereinafter NationsBank and such other
lenders may be referred to individually as a "Lender" or collectively as the
"Lenders"); and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), in its capacity as agent
for the Lenders (in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and certain of the Lenders (the
"Existing Lenders") have entered into a Revolving Credit and Reimbursement
Agreement dated June 22, 1994, as amended by Amendments No. 1 through No. 5
(the "Original Agreement") pursuant to which the Existing Lenders have agreed
to make available to the Borrower loans of up to $100,000,000 (the "Prior
Loans"), which Prior Loans are evidenced by notes in favor of the Existing
Lenders (the "Existing Notes"); and
WHEREAS, the Borrower has requested that the Lenders amend and restate
the Original Agreement in its entirety in order to make available to the
Borrower a revolving credit facility of up to $150,000,000 which shall include
thereunder a letter of credit facility of up to $10,000,000 and a swing line
facility of $10,000,000, the proceeds of such loans to be used for general
corporate purposes including the acquisition of health care properties; and
WHEREAS, the Lenders are willing to amend and restate the Original
Agreement and make such facilities available to the Borrower upon the terms and
conditions set forth herein; and
WHEREAS, all existing Subsidiaries of the Borrower have executed a
Guaranty in favor of the Agent for the benefit of the Existing Lenders
(collectively, the "Existing Guaranty");
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree
as follows:
7
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Advance" means a borrowing under the Revolving Credit
Facility consisting of the aggregate principal amount of a Base Rate
Loan or a Eurodollar Rate Loan, as the case may be;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with the Borrower; (ii) which beneficially
owns or holds 5% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 5% or more of
the equity interest) of the Borrower; (iii) 5% or more of any class of
the outstanding voting stock (or in the case of a Person which is not
a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of voting stock, by contract or otherwise;
"Applicable Commitment Percentage" means, for each Lender,
with respect to the Obligations hereunder (each a type of "credit
exposure"), including its Participations and its obligations hereunder
to NationsBank to acquire Participations, a fraction (expressed as a
percentage), the numerator of which shall be the then amount of such
Lender's Revolving Credit Commitment and the denominator of which
shall be the Total Revolving Credit Commitment, which Revolving Credit
Commitment for each Lender as of the Closing Date is as set forth in
Exhibit A attached hereto and incorporated herein by this reference;
provided that the Applicable Commitment Percentage of each Lender
shall be increased or decreased to reflect any assignments to or by
such Lender effected in accordance with Section 11.01 hereof;
"Applicable Margin" means with respect to a Eurodollar Rate
Loan that percent per annum set forth below opposite the applicable
Consolidated Senior Leverage Ratio which percent shall be the
Applicable Margin effective beginning on the day next following the
receipt of the completed certificate delivered pursuant to Section
7.01(a)(ii) or Section 7.01(b)(ii) setting forth the Consolidated
Senior Leverage Ratio as at the end of the period for which such
certificate is delivered:
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Consolidated Senior
Leverage Ratio Applicable Margin
-------------- -----------------
Less than .55 to 1.00 but 1 5/8%
Greater than or Equal
to .50 to 1.00
Less than .50 to 1.00 but 1 1/2%
Greater than or Equal
to .45 to 1.00
Less than .45 to 1.00 but 1 3/8%
Greater than or Equal
to .40 to 1.00
Less than .40 to 1.00 but 1 1/4%
Greater than or Equal
to .30 to 1.00
Less than .30 to 1.00 but 1 1/8%
Greater than or Equal
to .25 to 1.00
Less than .25 to 1.00 1 %
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrower from time to time and delivered to
NationsBank to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 11.01;
"Authorized Representative" means any of the Chairman,
President or Vice Presidents of the Borrower or, with respect to
financial matters, the Treasurer or chief financial officer of the
Borrower or any other person expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form attached hereto as Exhibit C;
"Base Rate" means the greater of (i) the Federal Funds
Effective Rate plus one-half of one percent (1/2%) or (ii) the Prime
Rate;
"Base Rate Loan" means all or portions of the Loan for which
the rate of interest is determined by reference to the Base Rate;
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9
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance, in the form attached
hereto as Exhibit D-1;
"Business Day" means any day which is not a Saturday, Sunday
or a day on which banks in both the States of North Carolina and New
York are authorized or obligated by law, executive order or
governmental decree to be closed;
"Capital Expenditures" means for any period the sum of
(without duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by the Borrower or any Subsidiary during that
period that are for items that would be classified in accordance with
Generally Accepted Accounting Principles as "property, plant or
equipment" or comparable items on the consolidated balance sheet of
the Borrower, plus (ii) with respect to any Capital Lease entered into
by the Borrower or its Subsidiaries during such period, the present
value of the lease payments due under such Capital Lease over the term
of such Capital Lease applying a discount rate equal to the interest
rate provided in such lease (or in the absence of a stated interest
rate that rate used in the preparation of the financial statements
described in Section 7.01(a) hereof), or (iii) any other item that is
properly capitalized in accordance with Generally Accepted Accounting
Principles, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance;
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting
Principles as in effect from time to time including Statement No. 13
of the Financial Accounting Standards Board and any successor thereof;
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 5.01 hereof have been satisfied;
"Code" means the Internal Revenue Code of 1986, as amended,
any successor provision or provisions and any regulations promulgated
thereunder;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
financial statements of the Borrower referred to in Section 6.01(f)(i)
hereof;
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"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any period of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense during such period, plus (iii) taxes on
income during such period, plus (iv) amortization during such period,
plus (v) without duplication, any depreciation during such period, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on
the date of computation thereof, the ratio of (a) Consolidated EBITDA
to (b) Consolidated Fixed Charges;
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries, for the periods indicated, the sum of, without
duplication, (i) Consolidated Interest Expense, (ii) dividends and
distributions (other than dividends payable solely in common stock of
the Borrower), and (iii) required principal payments of Consolidated
Indebtedness (excluding any portion of the Revolving Credit Facility);
"Consolidated Indebtedness" means all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis;
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries for the Four-Quarter Period ending
on the date of computation thereof, the ratio of (a) Consolidated Net
Income plus, to the extent deducted in determining Consolidated Net
Income, taxes based on income and Consolidated Interest Expense to (b)
Consolidated Interest Expense;
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including, without limitation, fees payable in respect of a Swap
Agreement) payable in connection with the incurrence of Indebtedness
to the extent included in interest expense and (iii) the portion of
any liabilities incurred in connection with Capital Leases allocable
to interest expense, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Consolidated Leverage Ratio" means the ratio of Consolidated
Indebtedness to Consolidated Total Capital;
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the
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Borrower and its Subsidiaries (including payments received by the
Borrower and its Subsidiaries of (i) interest income, and (ii)
dividends and distributions made in the ordinary course of their
businesses by Persons in which investment is permitted pursuant to
Section 8.10 and not related to an extraordinary event) less all
operating and non-operating expenses of the Borrower and its
Subsidiaries including taxes on income, all determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; but excluding as income: (i)
net gains on the sale, conversion or other disposition of capital
assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (iii) net gains on the collection of proceeds of
life insurance policies, (iv) any write-up of any asset, and (v) any
other net gain or credit of an extraordinary nature as determined in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Consolidated Senior Indebtedness" means Consolidated
Indebtedness minus Subordinated Indebtedness;
"Consolidated Senior Leverage Ratio" means the ratio of
Consolidated Senior Indebtedness to Consolidated Total Capital;
"Consolidated Shareholders' Equity" means, at any time as of
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding intercompany items among the Borrower
and its Subsidiaries and any upward adjustment after the Closing Date
due to revaluation of assets): (i) the amount of issued and
outstanding share capital, plus (ii) the amount of additional paid-in
capital and retained income (or, in the case of a deficit, minus the
amount of such deficit), minus, without duplication, (iii) the amount
of any deferred compensation or other contra-equity account, as
determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated Tangible Net Worth" means at any time as of
which the amount thereof is to be determined, Consolidated
Shareholders' Equity minus the sum of the following (without
duplication of deductions in respect of items already deducted in
arriving at surplus and retained earnings): (a) the book value of all
assets which would be treated as intangible assets under Generally
Accepted Accounting Principles, such as (without limitation) goodwill
(whether representing the excess of cost over book value of assets
acquired or otherwise), capitalized expenses, unamortized debt
discount and expense, consignment inventory rights, patents,
trademarks, trade names, copyrights, franchises and licenses; and (b),
without
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duplication, all reserves (other than contingency reserves not
allocated to any particular purpose), including without limitation
reserves for depreciation, depletion, amortization, obsolescence,
deferred income taxes, insurance and inventory valuation;
"Consolidated Total Capital" means the sum of Consolidated
Shareholders' Equity and Consolidated Indebtedness;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring
thereof, would be required) to be included in the consolidated
financial statements (including footnotes) of such Person in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including obligations of such
Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof;
with respect to Contingent Obligations, such liabilities shall be
computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the amount which can
reasonably be expected to become an actual or matured liability as
determined by Borrower's independent accountant;
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13
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United
States of America;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) the following debt securities of the following
agencies or instrumentalities of the United States of America
if at all times the full faith and credit of the United States
of America is pledged to the full and timely payment of all
interest and principal thereof:
(i) all direct or fully guaranteed
obligations of the United States Treasury; and
(ii) mortgage-backed securities and
participation certificates guaranteed by the
Government National Mortgage Association;
(c) the following obligations of the following
agencies or instrumentalities of the United States of America:
(i) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
(ii) consolidated debt obligations, and
obligations secured by a letter of credit, of the
Federal Home Loan Banks; and
(iii) debt obligations and mortgage-backed
securities of the Federal National Mortgage
Association which have not had the interest portion
thereof severed therefrom;
(d) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Moody's;
(e) interest bearing demand or time deposits or
certificates of deposit maturing within one year from the
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date of acquisition issued by a Lender or by bank or trust
company organized under the laws of the United States or of
any state thereof having capital surplus and undivided profits
aggregating at least $250,000,000 and being rated A-3 or
better by S&P or A or better by Moody's;
(f) capital stock of REITs, provided the aggregate
fair market value of such stock at no time exceeds $250,000;
(g) Repurchase Agreements;
(h) Pre-Refunded Municipal Obligations;
(i) shares of mutual funds which invest in
obligations described in paragraphs (a) through (g) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P; and
(j) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P- 1" by Moody's.
Obligations listed in paragraphs (a), (b) and (c) above which
are in book-entry form must be held in a trust account with the Federal
Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act,
as amended, any other "Superfund" or "Superlien" law or any other
federal, or applicable state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Euro Business Day" means a Business Day on which the relevant
international financial markets are open for the transaction of the
business contemplated by this Agreement in London, England and New
York, New York;
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"Eurodollar Rate" means the interest rate per annum
calculated according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
---------------------------------- Margin
Rate 1 - Eurodollar Reserve Percentage
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate;
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D or any successor regulation, as the maximum
reserve requirement (including any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate on Eurodollar Rate Loans is determined),
whether or not the Agent or any Lender has any Eurocurrency
liabilities subject to such requirements, without benefits of credits
or proration, exceptions or offsets that may be available from time to
time to the Agent or any Lender. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change
in the Eurodollar Reserve Percentage;
"Event of Default" means any of the occurrences set forth as
such in Section 9.01 hereof;
"Excluded Lease" means any Lease as to which the lessee has
either failed to make any required payment thereunder or is in default
of any other material provision of such Lease, and which Lease is
described on an Annex to the certificate required to be delivered to
the Agent pursuant to Section 7.01(a) and Section 7.01(b);
"Existing Letters of Credit" means those Letters of Credit
issued by NationsBank pursuant to the Original Agreement which remain
outstanding on the Closing Date and are described in Schedule 1.01
attached hereto;
"Federal Funds Effective Rate" for any day, as used herein,
means the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor)
on such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, if such Federal Reserve Bank (or its
successor) does not announce such rate on any day, the
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"Federal Funds Effective Rate" for such day shall be the Federal Funds
Effective Rate for the last day on which such rate was announced;
"Fiscal Year" means the 12 month period of the Borrower
commencing on January 1 of each calendar year and ending on December
31 of each calendar year;
"Four-Quarter Period" means a period of four full consecutive
quarterly periods, taken together as one accounting period;
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report, as
such principles are from time to time supplemented and amended, as
interpreted by the Borrower's independent accountants;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether of a state of the
United States, the United States or a foreign governmental entity;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property, all indebtedness secured
by any Lien on the property of such Person whether or not such
indebtedness is assumed, all liability of such Person by way of
endorsements (other than for collection or deposit in the ordinary
course of business), all Contingent Obligations and other items which
in accordance with Generally Accepted Accounting Principles is
classified as a liability on a balance sheet; but excluding all
accounts payable in the ordinary course of business so long as payment
therefor is due within one year; provided that in no event shall the
term Indebtedness include partners' capital, surplus
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17
and retained earnings, minority interest in Subsidiaries, lease
obligations (other than pursuant to Capital Leases), reserves for
deferred income taxes and investment credits, other deferred credits
and reserves, and deferred compensation obligations;
"Indebtedness for Money Borrowed" means all indebtedness in
respect of money borrowed, including without limitation all Capital
Leases and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond or similar written obligation for
the payment of money (including, but not limited to, conditional sales
or similar title retention agreements);
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the average
(rounded upward to the nearest one-hundredth (1/100) of one percent)
per annum rate of interest determined by the Agent (each such
determination to be conclusive and binding absent manifest error) as
of two Euro Business Days prior to the first day of such Interest
Period, as the effective rate at which deposits in immediately
available funds in Dollars are being, have been, or would be offered
or quoted by the Agent to major banks in the applicable interbank
market for Eurodollar deposits at any time during the Euro Business
Day which is the second Euro Business Day immediately preceding the
first day of such Interest Period, for a term comparable to such
Interest Period and in the amount of such Eurodollar Rate Loan. If no
such offers or quotes are generally available for such amount, then
the Agent shall be entitled to determine the Eurodollar Rate by
estimating in its reasonable judgment the per annum rate (as described
above) that would be applicable if such quote or offers were generally
available;
"Interest Period" for each Eurodollar Rate Loan means a period
commencing on the date such Eurodollar Rate Loan is made or converted
and each subsequent period commencing on the last day of the
immediately preceding Interest Period for such Eurodollar Rate Loan,
and ending, at the Borrower's option, on the date one, two, three or
six months thereafter as notified to the Agent by the Authorized
Representative three (3) Euro Business Days prior to the beginning of
such Interest Period; provided, that,
(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3) Euro
Business Days prior to the first day of such Interest Period,
the Loan for which such Interest Period was to be determined
shall be deemed to be a Base Rate Loan as of the first day
thereof;
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(ii) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Euro Business Day such
Interest Period shall be extended to the next Euro Business
Day (unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case
such Interest Period shall end on the next preceding Euro
Business Day); and
(iii) there shall not be more than eight (8) Interest
Periods in effect on any day;
"Interest Rate Selection Notice" means the telefacsimile or
telephonic request of an Authorized Representative to elect a
subsequent Interest Period for or to convert a Loan or Loans of any
type hereunder, as such election or conversion shall be otherwise
permitted herein. Any Interest Rate Selection Notice shall be binding
on and irrevocable by the Borrower and shall be confirmed in the case
of telephonic notice by facsimile transmission delivered to the Agent,
effective upon receipt, on the same Business Day upon which the
telephonic request is made, by the Authorized Representative in the
form attached hereto as Exhibit E;
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended or
modified from time to time;
"Leases" means all lease agreements in effect at any point in
time pursuant to which (i) the Borrower or a Subsidiary leases real
property owned by it to a Person who is not an Affiliate of the
Borrower or its Subsidiaries or (ii) a Person who is the maker of a
Third Party Note has leased real property acquired, improved or
refinanced by it with the proceeds of a Third Party Loan to another
Person who is not an Affiliate of the Borrower or its Subsidiaries;
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of
an affiliate of such Lender) as such Lender may from time to time
specify to the Authorized Representative and the Agent as the office
by which its Loans are to be made and maintained;
"Lessee" or "Lessees" means those persons leasing Properties
from the Borrower or its Subsidiaries or a maker of a Third Party Note
which leases property that secures a Third Party Loan;
"Letter of Credit" means a standby letter of credit issued by
NationsBank for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on
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behalf of the Borrower, including the Existing Letters of Credit;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Letter of Credit
Participations up to an aggregate stated amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Letter of Credit Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by NationsBank for the
account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of
Credit Commitment;
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
"Loan" or "Loans" means any of the Eurodollar Rate Loans or
Base Rate Loans;
"Loan Documents" means this Agreement, the Notes, the
Subsidiary Guaranty, Applications and Agreements for Letters of
Credit, the LC Account Agreement and all other instruments and
documents heretofore or hereafter executed or delivered to and in
favor of any Lender or the Agent in connection with the Loans or the
Letters of Credit made, issued or created under this Agreement as the
same may be amended, modified or supplemented from time to time;
"Majority Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined in the definition of Required
Lenders herein) aggregating more than 50% of the aggregate Credit
Exposures of all Lenders on such date;
"Material Agreements" means each of the contracts and
agreements designated as such on Schedule 6.01(s) attached hereto;
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20
"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware
corporation;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is also a multi-employer plan as defined in Section
4001(a)(3) of ERISA;
"Notes" means, collectively, (i) the promissory notes of the
Borrower evidencing Loans executed and delivered to the Lenders as
provided in Section 2.04(a) hereof substantially in the form attached
hereto as Exhibit F-1, with appropriate insertions as to amounts, dates
and names of Lenders and (ii) the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to NationsBank as
provided in Section 2.04(b) hereof substantially in the form attached
hereto as Exhibit F-2;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the
Reimbursement Obligations, (iii) all liabilities of Borrower to any
Lender which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders or the Agent hereunder, under any one or
more of the other Loan Documents or with respect to the Loans;
"Outstanding Letters of Credit" means all undrawn amounts of
Letters of Credit plus Reimbursement Obligations;
"Participation" means, (i) with respect to any Lender (other
than NationsBank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of NationsBank in respect of a Letter of Credit issued by
NationsBank in accordance with the terms hereof and (ii) with respect
to any Lender (other than NationsBank) and a Swing Line Loan, the
extension of credit represented by the participation of such Lender
hereunder in the liability of NationsBank in respect of a Swing Line
Loan made by NationsBank in accordance with the terms hereof;
"PBGC" means the Pension Benefit Guaranty Corporation;
"Person" means an individual, partnership, corporation, trust,
limited liability company, unincorporated organization, association,
joint venture or a government or agency or political subdivision
thereof;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of
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any such state which are rated, based on the escrow, in the highest
investment rating category by both S&P and Moody's and which have been
irrevocably called for redemption and advance refunded through the
deposit in escrow of Government Securities or other debt securities
which are (i) not callable at the option of the issuer thereof prior
to maturity, (ii) irrevocably pledged solely to the payment of all
principal and interest on such obligations as the same becomes due and
(iii) in a principal amount and bear such rate or rates of interest as
shall be sufficient to pay in full all principal of, interest, and
premium, if any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified public
accountants;
"Prime Rate" means the rate of interest per annum announced
publicly by the Agent as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest
offered by the Agent;
"Principal Office" means the office of the Agent at
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Corporate Administrative Services or such other office and
address as the Agent may from time to time designate;
"Properties" mean real property, heretofore, presently or
hereafter owned or leased by, or otherwise under the control of, the
Borrower or any of its Subsidiaries;
"Qualifying Real Property" means real property, and
improvements thereon, which is owned by or subject to a leasehold
estate in favor of the Borrower or a Subsidiary; provided, however, if
such ownership is of a leasehold interest the remaining term of such
lease, including rights of extension or renewal, as at the date of any
determination shall not be less than 15 years; provided, further,
there shall be excluded from Qualifying Real Property any real
property which is subject to an Excluded Lease;
"Rate Hedging Obligations" means any and all obligations of
the Borrower, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts,
warrants and those commonly known as interest rate "swap" agreements;
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and (b) any and all cancellations, buybacks, reversals, terminations
or assignments of any of the foregoing;
"Registration Statement" means the Registration Statement of
the Borrower on Form S-11, Registration No. 33-89756, as filed by the
Borrower with the Securities and Exchange Commission on March 6, 1995,
together with any amendment thereto;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged
with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
including with respect to "highly leveraged transactions," whether or
not having the force of law, whether or not failure to comply
therewith would be unlawful and whether or not published or proposed
prior to the date hereof;
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse NationsBank and the Lenders to the extent of their
respective Participations (including by the receipt by NationsBank of
proceeds of Loans pursuant to Section 3.02) for amounts theretofore
paid by NationsBank pursuant to a drawing under such Letter of Credit;
"REIT" means a real estate investment trust qualified for
treatment as such for federal income tax purposes under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended;
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Xxxxx'x or "A-1" by
S&P or "P-1" by Xxxxx'x;
"Required Coverage Ratio" means the ratio of Unencumbered Real
Property Assets (as determined by the lesser of book value or
appraised value) to unsecured Indebtedness;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at
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least 51% of the aggregate Credit Exposures of all the Lenders on such
date. For purposes of the preceding sentence, the amount of the "
Credit Exposure" of each Lender shall be equal to the aggregate
principal amount of the Loans owing to such Lender plus the aggregate
unutilized amounts of such Lender's Revolving Credit Commitment
(without regard to any Swing Line Outstandings) plus the amount of
such Lender's Applicable Commitment Percentage of Outstanding Letters
of Credit; provided that, (i) if any Lender shall have failed to pay
to NationsBank its Applicable Commitment Percentage of any drawing
under any Letter of Credit resulting in an outstanding Reimbursement
Obligation, such Lender's Credit Exposure attributable to Letters of
Credit, Reimbursement Obligations and the Letter of Credit Commitment
shall be deemed to be held by NationsBank for purposes of this
definition and (ii) if any Lender shall fail to pay to NationsBank its
Applicable Commitment Percentage of any Swing Line Loan, such Lender's
Credit Exposure attributable to all Swing Line Outstandings shall be
deemed to be held by NationsBank for purposes of this definition;
"Revolving Credit Advance Account" means an account on the
books of the Agent in which
(i) each Advance by the Agent pursuant to Section
2.01 shall be debited thereto by recording therein on the date
of such Advance a debit entry in the amount of such Advance;
and
(ii) each payment made to the Agent for credit to the
Revolving Credit Advance Account shall be credited thereto by
recording therein on the date paid to the Agent a credit entry
in the amount of such payment;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Loans to the Borrower up
to an aggregate principal amount at any one time outstanding equal to
such Lender's percentage as set forth on Exhibit A hereto of the Total
Revolving Credit Commitment as the same may be increased or decreased
from time to time pursuant to this Agreement;
"Revolving Credit Debit Balance" means an amount equal to the
excess, if any, of all debit entries over all credit entries required
to be recorded pursuant to Section 2.01 hereof in a Revolving Credit
Advance Account of the Agent up to and including the date of
computation;
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrower by the Lenders in
the aggregate principal amount of Total Revolving Credit Commitment
less the aggregate amount of Outstanding Letters of Credit;
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"Revolving Credit Termination Date" means (i) June 24, 1999 or
(ii) such earlier date of termination of Lenders' obligations pursuant
to Section 9.01 upon the occurrence of an Event of Default, or (iii)
such date as the Borrower may voluntarily permanently terminate the
Revolving Credit Facility by payment in full of all Obligations
(including the discharge of all Obligations of NationsBank and the
Lenders with respect to Letters of Credit and Participations) or (iv)
such later date as the Borrower and the Lenders shall agree in writing
pursuant to Section 2.13 hereof;
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx;
"Secured Non-Recourse Indebtedness" means Indebtedness of the
Borrower or any of its Subsidiaries which is secured by an ownership
interest in real property and improvements thereon and as to which
Indebtedness no recourse is available to the holder of such
Indebtedness against the Borrower and any of its Subsidiaries (except
to the extent described in Schedule 1.01 or otherwise permitted by the
Required Lenders), recourse being limited to the real property and
improvements securing such Indebtedness;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted;
"Subordinated Indebtedness" means Indebtedness of the Borrower
or its Subsidiaries which (i) is subordinated in right of payment,
including upon liquidation or dissolution, to payment in full of Senior
Indebtedness, (ii) bears interest at a per annum rate of not to exceed
11 1/2%, giving effect to any discount, (iii) prohibits acceleration
thereof and efforts to collect such Indebtedness until 180 days
following acceleration of Senior Indebtedness, (iv) contains covenants
and conditions no more restrictive than those contained in
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this Agreement, (v) is unsecured, and (vi) is otherwise acceptable to
the Required Lenders;
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries;
"Subsidiary Guaranty" means the Amended and Restated Guaranty
Agreement executed and delivered by a Subsidiary of the Borrower to
the Agent for the benefit of the Lenders as at the Closing Date and
each Guaranty Agreement substantially in the form of Exhibit G
delivered to the Agent pursuant to Section 7.20 hereof;
"Swap Agreement" means one or more agreements with respect to
Indebtedness evidenced by the Notes between the Borrower and another
Person, on terms mutually acceptable to such Borrower and such Person,
which agreements create Rate Hedging Obligations;
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.14;
"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to Section 2.14;
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding;
"Third Party Loan" means a Loan permitted under Section
8.10(v) made, participated in or otherwise acquired by the Borrower or
its Subsidiary to a Person the proceeds of which are used to (i)
acquire or improve real property and personal property associated
therewith which is used as a healthcare facility (which term shall
include without limitation medical office buildings and other
facilities the primary purpose of which is the provision of healthcare
or healthcare-related services) or will be used as a health care
facility upon completion of improvements, (ii) fully refinance
existing indebtedness used to acquire real property and improvements
which is used or will be used as a healthcare facility, provided such
property in either case is the subject of a Lease or operated by the
maker of the Third Party Note evidencing such Loan or (iii) finance
the acquisition of a controlling ownership interest in an entity whose
assets consist primarily of healthcare facilities;
"Third Party Note" means a promissory note evidencing a Third
Party Loan;
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"Total Letter of Credit Commitment" means an amount not to
exceed $10,000,000;
"Total Revolving Credit Commitment" means an amount equal to
$150,000,000, as reduced from time to time in accordance with Section
2.07;
"Unencumbered Real Property Assets" means Qualifying Real
Property of the Borrower and its Subsidiaries which are at all times
free and clear of and not subject to any Lien, pledge, security
interest or encumbrances securing Indebtedness or subject to any
limitation as to the right to Lien, mortgage or encumber such
Qualifying Real Property;
"Unused Fee" means a fee equal to the Unused Margin times the
sum of the daily amount by which the Total Revolving Credit Commitment
exceeds the sum of the average daily Revolving Credit Debit Balance
(without giving effect to Swing Line Outstandings) and Outstanding
Letters of Credit for each quarter period ending on the last day of
March, June, September and December;
"Unused Margin" means with respect to the Unused Fee that
percent per annum set forth below opposite the applicable Consolidated
Senior Leverage Ratio which percent shall be the Unused Fee effective
beginning on the day next following the receipt of the completed
certificate delivered pursuant to Section 7.01(a)(ii) or Section
7.01(b)(ii) setting forth the Consolidated Senior Leverage Ratio as at
the end of the period for which such certificate is delivered:
Consolidated Senior
Leverage Ratio Unused Margin
-------------- -------------
Less than .55 to 1.00 but Greater than or Equal to .50 to 1.00 1/4%
Less than .50 to 1.00 but Greater than or Equal to .45 to 1.00 1/4%
Less than .45 to 1.00 but Greater than or Equal to .40 to 1.00 1/4%
Less than .40 to 1.00 but Greater than or Equal to .30 to 1.00 1/4%
Less than .30 to 1.00 but Greater than or Equal to .25 to 1.00 1/5%
Less than .25 to 1.00 1/5%
1.02 Accounting Terms. All accounting terms not specifically defined
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
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1.03 UCC Terms. Each term defined in Article 1 or 9 of the Georgia
Uniform Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code of another
jurisdiction is controlling, in which case such terms shall have the meaning
given in the Uniform Commercial Code of the applicable jurisdiction.
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ARTICLE II
The Loans
2.01 Revolving Credit Facility
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the Borrower, from
time to time from the Closing Date until but not including the Revolving Credit
Termination Date on a pro rata basis as to the total borrowing requested by the
Borrower on any day determined by its Applicable Commitment Percentage up to
but not exceeding the Revolving Credit Commitment of such Lender, provided,
however, that the Lenders will not be required and shall have no obligation to
make any Advance (i) so long as a Default or an Event of Default has occurred
and is continuing or (ii) if the Agent has accelerated the maturity of the
Notes as a result of an Event of Default; provided further, however, that
immediately after giving effect to each Advance, the principal amount of
outstanding Loans plus the amount of all Outstanding Letters of Credit and
Swing Line Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits, the Borrower may borrow, repay and reborrow hereunder, on a
Business Day in the case of a Base Rate Loan and on a Euro Business Day in the
case of a Eurodollar Rate Loan, from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit Termination
Date; provided, however, that (x) no Eurodollar Rate Loan shall be made which
has an Interest Period that extends beyond the Revolving Credit Termination
Date and (y) each Eurodollar Rate Loan may, subject to the provisions of
Section 2.08, be repaid only on the last day of the Interest Period with
respect thereto.
(b) Amounts. The aggregate unpaid principal amount of the Loans,
Outstanding Letters of Credit and Swing Line Outstandings shall not exceed at
any time, an amount equal to the Total Revolving Credit Commitment. Each Loan
hereunder and each conversion under Section 2.08 shall be in an amount of at
least $500,000, and, if greater than $500,000, an integral multiple of
$100,000.
(c) Advances. (i) An Authorized Representative shall give the Agent
(1) at least three (3) Euro Business Days' irrevocable telefacsimile or
telephonic notice of each Eurodollar Rate Loan (whether representing an
additional borrowing hereunder or the conversion of borrowing hereunder from
Base Rate Loans to Eurodollar Rate Loans) prior to 11:00 A.M., Charlotte, North
Carolina time; and (2) irrevocable telefacsimile or telephonic notice of each
Base Rate Loan representing an additional borrowing hereunder prior to 11:00
A.M. Charlotte, North Carolina time on the day of such proposed Base Rate Loan.
Each such Borrowing Notice, which shall be effective upon receipt by the Agent,
shall specify the amount of the borrowing, the type (Base or Eurodollar) of
Loan, the date of borrowing, if a Eurodollar Rate Loan, the Interest
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Period to be used in the computation of interest and the manner of
disbursement. The Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice on the same day by telefacsimile
transmission in the form attached hereto as Exhibit D or E, as applicable, with
appropriate insertions but failure to provide such confirmation shall not
affect the validity of such telephonic notice. Notice of receipt of such
Borrowing Notice shall be provided by the Agent to each Lender by telephone or
telefacsimile with reasonable promptness, but not later than 1:00 P.M.,
Charlotte, North Carolina time on the same day as Agent's receipt of such
notice. The Agent shall provide each Lender written confirmation of such
telephonic confirmation by telefacsimile transmission but failure to provide
such notice shall not affect the validity of such telephonic notice.
(ii) Not later than 2:00 P.M., Charlotte, North Carolina time on the
date specified for each borrowing under this Section 2.01, each Lender shall,
pursuant to the terms and subject to the conditions of this Agreement, make the
amount of the Loan or Loans to be made by it on such day available to the
Agent, by depositing or transferring the proceeds thereof in immediately
available funds at the Principal Office. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrower by delivery of the proceeds thereof as shall be directed in
the applicable Borrowing Notice by the Authorized Representative.
(iii) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit prior to the Revolving Credit Termination Date, the drawing
shall be paid by the Agent without the requirement of notice from the Borrower
from immediately available funds which shall be advanced by the Lenders under
the Revolving Credit Facility. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and if Borrower shall not
immediately reimburse NationsBank for the amount of such draw or payment then
notice of such drawing or payment shall be provided promptly by NationsBank to
the Agent and the Agent shall provide notice to each Lender by telephone or
telefacsimile. If notice to the Lenders of a drawing under any Letter of
Credit is given by the Agent at or before 12:00 noon Charlotte, North Carolina
time on any Business Day, each Lender shall, pursuant to the conditions of this
Agreement, make a Base Rate Loan in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such amount to
the Agent for the account of NationsBank at the Principal Office in Dollars and
in immediately available funds before 2:30 P.M. Charlotte, North Carolina time
on the same Business Day. If notice to the Lenders of a drawing under a Letter
of Credit is given by the Agent after 12:00 noon Charlotte, North Carolina time
on any Business Day, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make a Base Rate Loan in the amount of such
Lender's Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the
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account of NationsBank at the Principal Office in Dollars and in immediately
available funds before 12:00 noon Charlotte, North Carolina time on the next
following Business Day. Such Base Rate Loan shall continue unless and until
the Borrower converts such Base Rate Loan in accordance with the terms of
Section 2.08 hereof.
2.02 Payment of Interest. (a) The Borrower shall pay interest to the
Agent for the account of each Lender on the outstanding and unpaid principal
amount of each Loan made by such Lender for the period commencing on the date of
such Loan until such Loan shall be due at the then applicable Base Rate for Base
Rate Loans or applicable Eurodollar Rate for Eurodollar Rate Loans, as
designated by the Authorized Representative pursuant to Section 2.01 hereof or
as otherwise provided herein; provided, however, that if any amount shall not be
paid when due (at maturity, by acceleration or otherwise), all amounts
outstanding hereunder shall bear interest thereafter (i) in the case of a
Eurodollar Rate Loan, until the end of the Interest Period with respect to such
Eurodollar Rate Loan, at a rate of two percent (2%) above such Eurodollar Rate
and (ii) thereafter, and with respect to Base Rate Loans, at a rate of interest
per annum which shall be four percent (4%) above the Base Rate or the maximum
rate permitted by applicable law, whichever is lower, from the date such amount
was due and payable until the date such amount is paid in full.
(b) Interest on each Loan shall be computed on the basis of a year of
360 days and calculated for the actual number of days elapsed. Interest on
each Loan shall be paid (a) quarterly in arrears on the last Business Day of
each March, June, September and December, commencing June 30, 1996, on each
Base Rate Loan, (b) on the last day of the applicable Interest Period for each
Eurodollar Rate Loan, or at the end of each three month period, whichever is
earlier, and (c) upon payment in full of the principal amount of such Loan and
termination of this Agreement.
2.03 Payment of Principal. (a) The principal amount of each Loan shall
be due and payable to the Agent for the benefit of each Lender in full on the
Revolving Credit Termination Date. The duration of the initial Interest Period
for each Loan that is a Eurodollar Rate Loan shall be as specified in the
initial Borrowing Notice. The Borrower shall have the option to elect the
duration of subsequent Interest Periods and to convert the Loans in accordance
with Section 2.08 hereof. If the Agent does not receive a notice of election of
duration of an Interest Period or to convert by the time prescribed by Section
2.08 hereof, the Borrower shall be deemed to have elected to convert such Loan
to (or continue such Loan as) a Base Rate Loan until the Borrower notifies the
Agent in accordance with Section 2.08.
(b) Each payment of principal (including any prepayment) and payment
of interest shall be made to the Agent at the Principal Office, for the account
of each Lender's applicable Lending Office, in Dollars and in immediately
available funds before 12:30 P.M.
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Charlotte, North Carolina time on the date such payment is due. The Agent may,
but shall not be obligated to, debit the amount of any such payment which is
not made by such time to any ordinary deposit account, if any, of the Borrower
with the Agent. The Borrower shall give the Agent prior telephonic or
telefacsimile notice of any payment of principal, such notice to be given by
not later than 11:00 a.m. Charlotte, North Carolina time, on the date of such
payment.
(c) The Agent shall deem any payment by or on behalf of the Borrower
hereunder that is not made both (a) in Dollars and in immediately available
funds and (b) prior to 12:30 P.M. Charlotte, North Carolina time to be a non-
conforming payment. Any such payment shall not be deemed to be received by the
Agent until the time such funds become available funds. Any non-conforming
payment may constitute or become a Default or Event of Default. The Agent shall
give prompt telephonic notice to the Authorized Representative and each of the
Lenders (confirmed in writing) if any payment is non-conforming. Interest shall
continue to accrue on any principal as to which a non-conforming payment is made
until such funds become available funds (but in no event less than the period
from the date of such payment to the next succeeding Business Day) at a rate of
interest per annum which shall be two percent (2%) above the Base Rate or the
maximum rate permitted by applicable law, whichever is lower, from the date such
amount was due and payable until the date such amount is paid in full.
(d) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day; provided that interest shall
continue to accrue during the period of any such extension.
2.04 Notes. (a) Loans (other than Swing Line Loans) made by each
Lender shall be evidenced by, and be repayable with interest in accordance with
the terms of, the promissory notes payable to the order of such Lender in the
respective amounts of its Applicable Commitment Percentage of the Total
Revolving Credit Commitment, which Notes shall be dated the Closing Date or such
later date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
(b) Swing Line Loans made by NationsBank shall be evidenced by and
repayable with interest, in accordance with the terms of, the promissory note
payable to the order of NationsBank in the principal amount of $10,000,000.
2.05 Pro Rata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Loans and the fees
described in Section 2.09 hereof shall be made to the Agent for the account of
the Lenders pro rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrower for the account of each of the Lenders on
account of
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principal, interest and fees, shall be made without set-off or counterclaim,
and (c) the Agent will promptly distribute payments received to the Lenders.
2.06 Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
once during each fiscal quarter), upon not less than five (5) Business Days
written notice to the Agent to reduce the Total Revolving Credit Commitment. The
Agent shall give each Lender, within one (1) Business Day, telephonic notice
(confirmed in writing) of such reduction. Each such reduction shall be in the
aggregate amount of $5,000,000 or such greater amount which is in an integral
multiple of $1,000,000, and shall permanently reduce the Total Revolving Credit
Commitment of the Lenders pro rata. No such reduction shall result in the
payment of any Eurodollar Rate Loan other than on the last day of the Interest
Period of such Loan unless such prepayment is accompanied by amounts due, if
any, under Section 4.04. Each reduction of the Total Revolving Credit
Commitment shall be accompanied by payment of the Notes to the extent that the
sum of the Revolving Credit Debit Balance, the Outstanding Letters of Credit and
Swing Line Outstandings exceeds the Total Revolving Credit Commitment, after
giving effect to such reduction, together with accrued and unpaid interest on
the amounts prepaid.
2.07 Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower shall be
reduced by the aggregate amount of all Outstanding Letters of Credit and Swing
Line Outstandings.
2.08 Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below and in Sections 4.01(b), 4.02 and
4.03 hereof, the Borrower may:
(a) upon notice to the Agent on or before 10:30 A.M. Charlotte, North
Carolina time on any Business Day convert all or a part of Eurodollar Rate Loans
to Base Rate Loans on the last day of the Interest Period for such Eurodollar
Rate Loans;
(b) on three (3) Euro Business Days' notice to the Agent on or before
10:30 A.M. Charlotte, North Carolina time:
(i) elect a subsequent Interest Period for all or a portion of
Eurodollar Rate Loans to begin on the last day of the current Interest
Period for such Eurodollar Rate Loans;
(ii) convert Base Rate Loans to Eurodollar Rate Loans on any
date.
Notice of any such elections or conversions shall be in the form of
Exhibit E attached hereto and shall specify the effective
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date of such election or conversion and the Interest Period to be applicable to
the Loan as continued or converted. Each election and conversion pursuant to
this Section 2.08 shall be subject to the limitations on Eurodollar Rate Loans
set forth in the definition of "Interest Period" herein and in Sections 2.01,
2.02 and Article IV hereof. All such continuations or conversions of Loans shall
be effected pro rata based on the Applicable Commitment Percentages of the
Lenders.
2.09 Fee. For the period beginning on the date of satisfaction of the
conditions set forth in Section 5.02 and ending on the Revolving Credit
Termination Date (or such earlier date on which the Revolving Credit Facility
has terminated), the Borrower agrees to pay to the Agent, for the pro rata
benefit of the Lenders based on their Applicable Commitment Percentages, the
Unused Fee. Such payments of fees provided for in this subsection (b) shall be
due in arrears on the last Business Day of each March, June, September and
December beginning June 30, 1996 to and on the Revolving Credit Termination Date
(or such earlier date on which the Revolving Credit Facility has terminated).
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion. Such fee shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed.
2.10 Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
any Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing, in the event any Lender shall fail to
advance funds to the Borrower as herein provided, the Agent may in its
discretion, but shall not be obligated to, advance under the Note in its favor
as a Lender all or any portion of such amount or amounts (each, a "deficiency
advance") and shall thereafter be entitled to payments of principal of and
interest on such deficiency advance in the same manner and at the same interest
rate or rates to which such other Lender would have been entitled had it made
such advance under its Note; provided that, upon payment to the Agent from such
other Lender of the entire outstanding amount of each such deficiency advance,
together with accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Agent by the Borrower on each Loan comprising the
deficiency advance at the interest rate per annum for overnight borrowing by the
Agent from the Federal Reserve Bank, then such payment shall be credited against
the applicable Note of the Agent in full payment of such deficiency advance and
the Borrower shall be deemed to have borrowed the amount of such deficiency
advance from such other Lender as of the most recent date or dates, as the
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case may be, upon which any payments of interest were made by the Borrower
thereon.
2.11 Adjustments by Agent. Notwithstanding the construction of "pro
rata" to mean based on the Applicable Percentage Commitments and any provisions
contained herein for the advancement of funds or distribution of payments on a
pro rata basis, the Agent may, in its discretion, but shall not be obligated to,
adjust downward or upward (but not in excess of any applicable Revolving Credit
Commitment) the principal amount of any Loan to be made by any Lender to the
nearest amount which is evenly divisible by $100, and make appropriate related
adjustment in the distribution of payments of principal and interest on the
Loans.
2.12 Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower (i) to make
loans and investments permitted under Section 8.10(v), and (ii) for general
corporate purposes, including the acquisition of health care related properties
by lease or purchase.
2.13 Extension of Revolving Credit Termination Date. At the request of
the Borrower the Lenders may, in their sole discretion, elect to extend the
Revolving Credit Termination Date then in effect for two additional periods of
one year each. The Borrower shall notify the Lenders of its request for such an
extension by delivering to the Agent and the Lenders notice of such request
signed by an Authorized Representative not more than ninety (90) days nor less
than sixty (60) days prior to the first or second anniversary of the Closing
Date. If the Lenders shall elect to so extend, the Agent shall notify the
Borrower in writing within thirty (30) days of its receipt of such request for
extension of the decision of the Lenders of whether to extend the Revolving
Credit Termination Date. Failure by the Agent to give such notice shall
constitute refusal by the Lenders to extend the Revolving Credit Termination
Date.
2.l4. Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, NationsBank shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. NationsBank shall not
make any Swing Line Loan pursuant hereto (i) if to the actual knowledge of
NationsBank the Borrower is not in compliance with all the conditions to the
making of Loans set forth in this Agreement, (ii) if after giving effect to such
Swing Line Loan, the Swing Line Outstandings exceed $10,000,000 or (iii) if
after giving effect to such Swing Line Loan, the sum of the Swing Line
Outstandings, Revolving Credit Outstandings and Letter of Credit Outstandings
exceeds the Total Revolving Credit Commitment. Swing Line Loans shall be limited
to Base Rate Loans. The Company may borrow, repay and reborrow under this
Section 2.l4. Unless notified to the
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contrary by NationsBank, borrowings under the Swing Line shall be made in the
minimum amount of $100,000 or, if greater, in amounts which are integral
multiples of $10,000, upon written request by telefacsimile transmission,
effective upon receipt, by an Authorized Representative of the Borrower made to
NationsBank not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in the form of Exhibit D-2,
with appropriate insertions. Unless notified to the contrary by NationsBank,
each repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $10,000 or the aggregate amount of all Swing Line Outstandings. If
the Borrower instructs NationsBank to debit any demand deposit account of the
Borrower in the amount of any payment with respect to a Swing Line Loan, or
NationsBank otherwise receives repayment, after 12:30 P.M. on a Business Day,
such payment shall be deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate or such other
rate as may be agreed to by the Borrower and NationsBank, the interest payable
on Swing Line Loans is solely for the account of NationsBank, and all accrued
and unpaid interest on Swing Line Loans shall be payable on the dates and in the
manner provided in Section 2.02 with respect to interest on Base Rate Loans. The
Swing Line Outstandings shall be evidenced by the Note delivered to NationsBank
pursuant to Section 2.04(b).
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from NationsBank a Participation therein in an amount equal to
that Lender's Applicable Commitment Percentage of such Swing Line Loan. Upon
demand made by NationsBank, each Lender shall, according to its Applicable
Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank
its purchase price therefor in an amount equal to its Participation therein. Any
Advance made by a Lender pursuant to demand of NationsBank of the purchase price
of its Participation shall be deemed a Base Rate Loan under Section 2.01 until
the Borrower converts such Base Rate Loan in accordance with the terms of
Section 2.08. The obligation of each Lender to so provide its purchase price to
NationsBank shall be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.01 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to NationsBank the amount necessary to repay such
Swing Line Outstandings (which NationsBank shall then apply to such repayment)
and credit any balance of the Advance in immediately available funds in the
manner directed by the Borrower pursuant to Section 2.01(c)(ii). The proceeds
of such Advances shall be paid to NationsBank for application to the Swing Line
Outstandings and the
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Lenders shall then be deemed to have made Loans in the amount of such Advances.
The Swing Line shall continue in effect until the Revolving Credit Termination
Date, at which time all Swing Line Outstandings and accrued interest thereon
shall be due and payable in full.
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ARTICLE III
Letters of Credit
3.01 Letters of Credit. NationsBank agrees, subject to the terms and
conditions of this Agreement, upon request of Borrower to issue from time to
time for the account of Borrower Letters of Credit upon delivery to NationsBank
of an Application and Agreement for Letter of Credit in form and content
acceptable to NationsBank; provided, that the Outstanding Letters of Credit
shall not exceed the Total Letter of Credit Commitment. No Letter of Credit
shall be issued by NationsBank with an (i) expiry date greater than one year
from the date of issuance of such Letter of Credit and (ii) an expiry date or
payment date occurring subsequent to the fifth Business Day preceding the
Revolving Credit Termination Date. NationsBank shall not be required to issue
any Letter of Credit if the Outstanding Letters of Credit and Swing Line
Outstandings when added to the face amount of any requested Letter of Credit and
the Revolving Credit Debit Balance exceeds the Total Revolving Credit
Commitment.
3.02 Reimbursement.
(a) The Borrower hereby unconditionally agrees immediately to
pay to NationsBank on demand at the Principal Office all amounts required to pay
all drafts drawn or purporting to be drawn under the Letters of Credit and all
reasonable expenses incurred by NationsBank in connection with the Letters of
Credit and in any event and without demand to place in possession of NationsBank
(which shall include Advances under the Revolving Credit Facility if permitted
by Section 2.01(c) hereof and Swing Line Loans if permitted under Section 2.14)
sufficient funds to pay all debts and liabilities arising under any Letter of
Credit. The Borrower's obligations to pay NationsBank under this Section 3.02,
and NationsBank's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever. NationsBank agrees to
give the Borrower prompt notice of any request for a draw under a Letter of
Credit. NationsBank may charge any account the Borrower may have with it for any
and all amounts NationsBank pays under a Letter of Credit, plus charges and
reasonable expenses as from time to time agreed to by NationsBank and the
Borrower; provided that to the extent permitted by Section 2.01(c)(iii) and
Section 2.14, amounts shall be paid pursuant to Advances under the Revolving
Credit Facility or, if the Borrower shall elect, by Swing Line Loans. The
Borrower agrees that NationsBank may, in its sole discretion, accept or pay, as
complying with the terms of any Letter of Credit, any drafts or other documents
otherwise in order which may be signed or issued by an administrator, executor,
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, liquidator, receiver, attorney in fact or other legal representative
of a party who is authorized under such Letter of Credit to draw or issue any
drafts or other documents. The Borrower agrees to pay NationsBank
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interest on any amounts not paid when due hereunder at the Base Rate plus two
percent (2%), or the maximum rate permitted by applicable law, if lower.
(b) In accordance with the provisions of Section 2.01(c)
hereof, NationsBank shall notify the Agent (and shall also notify the Borrower)
of any drawing under any Letter of Credit as promptly as practicable following
the receipt by NationsBank of such drawing.
(c) Each Lender (other than NationsBank) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of
NationsBank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay NationsBank under Section 3.02(a), each
Lender (other than NationsBank) thereby shall absolutely, unconditionally and
irrevocably assume, and shall be unconditionally obligated to pay to NationsBank
as hereinafter described, its Applicable Commitment Percentage of the liability
of NationsBank under such Letter of Credit. Prior to the Revolving Credit
Termination Date, each Lender (including NationsBank in its capacity as a
Lender) shall, subject to the terms and conditions of Article II, make a Base
Rate Loan to the Borrower by paying to the Agent for the account of NationsBank
at the Principal Office in Dollars and in immediately available funds, an amount
equal to its Applicable Commitment Percentage of any drawing under a Letter of
Credit, all as described and pursuant to Section 2.01(c). With respect to
drawings under any of the Letters of Credit, each Lender, upon receipt from the
Agent of notice of a drawing in the manner described in Section 2.01(c), shall
promptly pay to the Agent for the account of NationsBank, prior to the
applicable time set forth in Section 2.01(c), its Applicable Commitment
Percentage of such drawing. Simultaneously with the making of each such payment
by a Lender to NationsBank, such Lender shall, automatically and without any
further action on the part of NationsBank or such Lender, acquire a
Participation in an amount equal to such payment (excluding the portion thereof
constituting interest) in the related Reimbursement Obligation of the Borrower.
The Reimbursement Obligations of the Borrower shall be immediately due and
payable whether by Advances made in accordance with Section 2.01(c), Swing Line
Loans in accordance with Section 2.14, or otherwise. Each Lender's obligation to
make payment to the Agent for the account of NationsBank pursuant to this
Section 3.02(c), and the right of NationsBank to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance whatsoever
and shall be made without any offset, abatement, withholding or reduction
whatsoever. If any Lender is obligated to pay but does not pay amounts to the
Agent for the account of NationsBank in full upon such request as required by
this Section 3.02(c), such Lender shall, on demand, pay to the Agent for the
account of NationsBank interest on the unpaid amount for each day during the
period commencing on the date of notice
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given to such Lender pursuant to Section 2.01(c) until such Lender pays such
amount to the Agent for the account of NationsBank in full at the interest rate
per annum for overnight borrowing by NationsBank from the Federal Reserve Bank.
(d) Promptly following the end of each calendar quarter,
NationsBank shall deliver to the Agent a notice describing the aggregate undrawn
amount of all Letters of Credit at the end of such quarter. Upon the request of
any Lender from time to time, NationsBank shall deliver to the Agent, and the
Agent shall deliver to such Lender, any other information reasonably requested
by such Lender with respect to each Outstanding Letter of Credit.
(e) The issuance by NationsBank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 5.01 hereof,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to NationsBank consistent
with the then current practices and procedures of NationsBank with respect to
similar letters of credit, and the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters of Credit as
NationsBank shall have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and subject to the
Uniform Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 and all subsequent
amendments and revisions thereto.
(f) Without duplication of Section 10.07 hereof, the Borrower
hereby agrees to indemnify and hold harmless NationsBank, each other Lender and
the Agent from and against any and all claims and damages, losses, liabilities,
reasonable costs and expenses which NationsBank, such other Lender or the Agent
may incur (or which may be claimed against NationsBank, such other Lender or the
Agent) by any Person by reason of or in connection with the issuance or transfer
of or payment or failure to pay under any Letter of Credit; provided that the
Borrower shall not be required to indemnify NationsBank, any other Lender or the
Agent for any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or (ii) caused by the failure of
NationsBank to pay under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of such Letter of
Credit, unless such payment is prohibited by any law, regulation, court order or
decree. The indemnification and hold harmless provisions of this Section 3.02(f)
shall survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date and expiration or termination of this Agreement.
(g) Without limiting Borrower's rights as set forth in Section
3.02(f) above, the obligation of the Borrower to immediately reimburse Agent for
drawings made under Letters of
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Credit shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement and such Letters of
Credit and the related applications for any Letter of Credit, under all
circumstances whatsoever, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other agreement
or instrument relating thereto (collectively, the "Related Documents");
(ii) any amendment or waiver of or any consent to or departure
from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense (other than
the defense of payment in accordance with the terms of this Agreement) or other
rights which the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any persons or entities for whom any such
beneficiary or any such transferee may be acting), Agent, Lenders or any other
person or entity, whether in connection with the Loan Documents, the Related
Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between the
Borrower and any beneficiary or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or any such transferee may be
acting), Agent, Lenders or any other Person;
(v) any draft, statement or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or
other indulgence or modification granted or agreed to by Agent, with or without
notice to or approval by the Borrower in respect of any of Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release
NationsBank or any other Lender of any liability for actual loss arising as a
result of its gross negligence or willful misconduct or out of the wrongful
dishonor by NationsBank of a proper demand for payment made under and strictly
complying with the terms of any Letter of Credit.
3.03 Letter of Credit Fee. The Borrower agrees to pay to the Agent, for
the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, a fee on the aggregate amount available to be drawn on each
Outstanding Letter of Credit at a rate per annum equal to the Applicable Margin
in effect from time
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to time. Such payment of fees provided for in this Section 3.03 shall be due
with respect to each Letter of Credit quarterly in arrears, on the last day of
each March, June, September and December. Such fee shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed. In
addition, the Borrower shall pay to the Agent a Letter of Credit fronting fee
of one-eighth of one percent (1/8%) per annum of the face amount of each Letter
of Credit, such fee to be paid in arrears on the last day of each March, June,
September and December, the first such payment to be due on the first such date
occurring after there is more than one Lender.
3.04 Administrative Fees and Reserves. The Borrower shall pay to
NationsBank such administrative fee and other fees, if any, in connection with
the Letters of Credit in such amounts and at such times as NationsBank and the
Borrower shall agree from time to time.
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ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs. (a) The Borrower shall promptly pay to the Agent
for the account of a Lender from time to time, without duplication, such amounts
as such Lender may reasonably determine to be necessary to compensate it for any
costs incurred by such Lender which it determines are attributable to its making
or maintaining any Loan or its obligation to make any Loans, or the issuance or
maintenance by NationsBank of or any other Lender's Participation in any Letter
of Credit issued or Swing Line Loan extended hereunder, or any reduction in any
amount receivable by such Lender under this Agreement, the Notes or the Letters
of Credit in respect of any of such Loans or such obligation or the Letters of
Credit, including reductions in the rate of return on a Lender's capital (such
increases in costs and reductions in amounts receivable and returns being herein
called "Additional Costs"), resulting from any Regulatory Change which: (i)
changes the basis of taxation of any amounts payable to such Lender under this
Agreement or the Notes in respect of any of such Loans or Letters of Credit
(other than taxes imposed on or measured by the income, revenues or assets); or
(ii) imposes or modifies any reserve, special deposit, or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender (other than any such reserve, deposit or
requirement reflected in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Rate, in each case computed in accordance with the respective
definitions of such terms set forth in Section 1.01 hereof); or (iii) has or
would have the effect of reducing the rate of return on capital of any such
Lender to a level below that which the Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender's policies with respect
to capital adequacy); or (iv) imposes any other condition adversely affecting
the Agent or the Lenders under this Agreement, the Notes or the issuance or
maintenance of, or any Lender's Participation in, the Letters of Credit or Swing
Line Loans (or any of such extensions of credit or liabilities). Each Lender
will notify the Authorized Representative and the Agent of any event occurring
after the Closing Date which would entitle it to compensation pursuant to this
Section 4.01(a) as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation.
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
the Lender which includes deposits by reference to which the interest rate on
Eurodollar Rate Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of any Lender which includes Eurodollar
Rate Loans or (ii) becomes subject to
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restrictions on the amount of such a category of liabilities or assets which it
may hold, then, if the Lender so elects by notice to the other Lenders, the
obligation hereunder of such Lender to make, and to convert Base Rate Loans
into, Eurodollar Rate Loans that are the subject of such restrictions shall be
suspended until the date such Regulatory Change ceases to be in effect and the
Borrower shall, on the last day(s) of the then current Interest Period(s) for
outstanding Eurodollar Rate Loans convert such Eurodollar Rate Loans into Base
Rate Loans; provided, however, that the suspension of such obligation and the
conversion of any Eurodollar Rate Loans into Base Rate Loans shall apply only
to any Lender who is affected by such restrictions and who has provided such
notice to the other Lenders, and the obligation of the other Lenders to make,
and to convert Base Rate Loans into, Eurodollar Rate Loans shall not be
affected by such restrictions. In the event that the obligation of some, but
not all of the Lenders to make, or to convert Base Rate Loans into, Eurodollar
Rate Loans is suspended, then any request by the Borrower during the pendency
of such suspension for a Eurodollar Rate Loan shall be deemed a request for
such Eurodollar Rate Loan from the Lender(s) not subject to such suspension and
for a Base Rate Loan from the Lender(s) who are subject to such suspension, in
each case in the respective amounts based on the Lenders' respective Revolving
Credit Commitments.
(c) Determinations by any Lender for purposes of this Section 4.01 of
the effect of any Regulatory Change on its costs of making or maintaining, or
being committed to make, Loans or by NationsBank as issuer of any Letter of
Credit of the effect of any Regulatory Change on its costs in connection with
the issuance or maintenance of, or any other Lender's Participation in, any
Letter of Credit issued or Swing Line Loans extended hereunder, or on amounts
receivable by any Lender in respect of Loans or Letters of Credit, and of the
additional amounts required to compensate the Lender in respect of any
Additional Costs, shall be conclusive absent manifest error, provided that such
determinations are made on a reasonable basis taking into account such Lender's
reasonable policies as to the allocation of capital, costs and other items. The
Lender requesting such compensation shall furnish to the Authorized
Representative and the Agent within one hundred and eighty (180) days of the
incurrence of any Additional Costs for which compensation is sought an
explanation of the Regulatory Change and calculations, in reasonable detail,
setting forth such Lender's determination of any such Additional Costs.
4.02 Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Eurodollar Rate Loan for any Interest Period, the Agent determines (which
determination made on a reasonable basis shall be conclusive absent manifest
error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Rate" in
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Section 1.01 hereof are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining the rate of
interest for such Eurodollar Rate Loan as provided in this Agreement;
or
(b) the relevant rates of interest referred to in the
definition of "Base Rate" in Section 1.01 hereof upon the basis of
which the Eurodollar Rate for such Interest Period is to be determined
do not adequately reflect the cost to the Lenders of making or
maintaining such Eurodollar Rate Loan for such Interest Period or such
Eurodollar Rate Loan (which determination shall be made on a reasonable
basis by the Agent, and the Person making such determination shall
furnish the Authorized Representative evidence of the facts leading to
such determination);
then the Agent shall give the Authorized Representative prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make Eurodollar Rate Loans that are subject to such condition, or
to convert Loans into Eurodollar Rate Loans, and the Borrower shall on the last
day(s) of the then current Interest Period(s) for outstanding Eurodollar Rate
Loans, as applicable, convert such Eurodollar Rate Loans into a Eurodollar Rate
Loan if such Eurodollar Rate Loan is not subject to the same or similar
condition, or Base Rate Loans, if available hereunder. The Agent shall give
the Authorized Representative notice describing in reasonable detail any event
or condition described in this Section 4.02 promptly following the
determination by the Agent that the availability of Eurodollar Rate Loans is,
or is to be, suspended as a result thereof.
4.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender to honor its obligation to
make or maintain Eurodollar Rate Loans hereunder, then such Lender shall
promptly notify the Borrower thereof (with a copy to the Agent) and such
Lender's obligation to make or continue Eurodollar Rate Loans, or convert Base
Rate Loans into Eurodollar Rate Loans, shall be suspended until such time as
such Lender may again make and maintain Eurodollar Rate Loans, and such Lender's
outstanding Eurodollar Rate Loans shall be converted into Base Rate Loans in
accordance with Section 2.08 hereof.
4.04 Compensation. The Borrower shall promptly pay to each Lender, upon
the request of such Lender, such amount or amounts as shall be sufficient (in
the reasonable determination of Lender) to compensate it for any loss, cost or
expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Eurodollar Rate
Loan on a date other than the last day of the Interest Period for such
Eurodollar Rate Loan, including without limitation any conversion
required pursuant to Section 4.03; or
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(b) any failure by the Borrower to borrow a Eurodollar Rate
Loan on the date for such borrowing specified in the relevant Borrowing
Notice under Article II hereof;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount so paid, prepaid or converted or not borrowed for the period
from the date of such payment, prepayment or conversion or failure to borrow or
convert to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow or convert, the Interest Period for such
Loan which would have commenced on the date scheduled for such borrowing or
conversion) at the applicable rate of interest for such Eurodollar Rate Loan
provided for herein over (ii) the Interbank Offered Rate (as reasonably
determined by the Agent) for Dollar deposits of amounts comparable to such
principal amount and maturities comparable to such period. A determination of
a Lender as to the amounts payable pursuant to this Section 4.04 shall be
conclusive, provided that such determinations are made on a reasonable basis.
The Lender requesting compensation under this Section 4.04 shall furnish to the
Authorized Representative and the Agent calculations in reasonable detail
setting forth such Lender's determination of the amount of such compensation.
4.05 Alternate Loan and Lender. (a) In the event any Lender suspends
the making of any Eurodollar Rate Loan pursuant to this Article IV (herein a
"Restricted Lender"), the Restricted Lender's Commitment Percentage of any
Eurodollar Rate Loan shall bear interest at either the Base Rate or the
Eurodollar Rate for which the suspension does not apply, as selected by
Borrower, until the Restricted Lender once again makes available the applicable
Eurodollar Rate Loan. Notwithstanding the provisions of Section 2.02(b),
interest shall be payable to the Restricted Lender at the time and manner as
paid to those Lenders making available Eurodollar Rate Loans.
(b) In the event any Lender shall continue to be a Restricted Lender
for more than three consecutive months, such Restricted Lender hereby agrees
that upon the request of the Borrower, upon the Borrower causing to be delivered
to the Agent (i) a substitute lender acceptable to the Agent, (ii) an Assignment
and Acceptance Agreement executed by such substitute lender pursuant to Section
11.01(a), and (iii) immediately available funds in an amount sufficient to pay
all amounts owed hereunder to such Restricted Lender, it shall execute the
Assignment and Acceptance Agreement referred to above and surrender its Note to
the Borrower upon receipt of payment of amounts owed to its under this
Agreement.
4.06 Taxes. All payments by the Borrower of principal of, and interest
on, the Loans and all other amounts payable hereunder shall be made free and
clear of and without deduction for any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other
charges
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of any nature whatsoever imposed by any taxing authority, but excluding (i)
franchise taxes, (ii) any taxes (other than withholding taxes) that would not be
imposed but for a connection between a Lender or the Agent and the jurisdiction
imposing such taxes (other than a connection arising solely by virtue of the
activities of such Lender or the Agent pursuant to or in respect of this
Agreement or any other Loan Document), (iii) any withholding taxes payable with
respect to payments hereunder or under any other Loan Document under laws
(including, without limitation, any statute, treaty, ruling, determination or
regulation) in effect on the Closing Date, (iv) any taxes imposed on or measured
by any Lender's assets, net income, receipts or branch profits and (v) any taxes
arising after the Closing Date solely as a result of or attributable to Lender
changing its designated lending office after the date such Lender becomes a
party hereto (such non-excluded items being collectively called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(c) pay to the Agent for the account of the Lender such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Prior to the date that any Lender or participant organized under the
laws of a jurisdiction outside the United States becomes a party hereto, such
Person shall deliver to the Borrower and the Agent such certificates, documents
or other evidence, as required by the Code or Treasury Regulations issued
pursuant thereto, properly completed, currently effective and duly executed by
such Lender or participant establishing that such payment is (i) not subject to
United States Federal backup withholding tax and (ii) not subject to United
States Federal withholding tax under the Code because such payment is either
effectively connected with the conduct by such Lender or participant of a trade
or business in the United States or totally exempt from United States Federal
withholding tax by reason of the application of the provisions of a treaty to
which the United States is a party or such Lender is otherwise exempt.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Lender, the required receipts or other required documentary
evidence, the Borrower shall indemnify
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the Lenders for any incremental Taxes, interest or penalties that may become
payable by any Lender as a result of any such failure. For purposes of this
Section 4.06, a distribution hereunder by the Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrower.
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ARTICLE V
Conditions of Closing, Making Loans and Issuing
Letters of Credit
5.01 Conditions of Closing, Initial Advance and Issuance of Letters of
Credit. The execution and delivery by the Agent and the Lenders of this
Agreement, the making of an initial Advance and issuance of a Letter of Credit
are subject to the conditions precedent that the Agent shall have received on
the Closing Date, in form and substance satisfactory to the Agent and Lenders,
the following:
(a) executed originals of each of this Agreement, the Notes
and the other Loan Documents, together with all schedules and exhibits
thereto;
(b) favorable written opinion of counsel to the Borrower and
its Subsidiaries dated the Closing Date, addressed to the Agent and the
Lenders and satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.,
special counsel to the Agent, substantially in the forms of Exhibit H
attached hereto;
(c) resolutions of the board of directors or other appropriate
governing body (or of the appropriate committee thereof) of the
Borrower and its Subsidiaries certified by its secretary or assistant
secretary as of the Closing Date, appointing the initial Authorized
Representative (in the case of the Borrower) and approving and adopting
the Loan Documents to be executed by the Borrower or its Subsidiaries,
as the case may be, and authorizing the execution and delivery thereof;
(d) specimen signatures of officers of the Borrower or its
Subsidiaries, as the case may be, executing the Loan Documents on
behalf of such Person, certified by the secretary or assistant
secretary of the Borrower or its Subsidiaries;
(e) the charter documents or partnership agreement, as the
case may be, of the Borrower and its Subsidiaries certified as of a
recent date by the Secretary of State of its state of incorporation or
a certificate as to the absence of any change thereto;
(f) the by-laws of the Borrower and its Subsidiaries certified
as of the Closing Date as true and correct by the secretary or
assistant secretary of the Person to whom such by-laws relate or a
certificate as to the absence of any change thereto;
(g) certificates issued as of a recent date by the Secretaries
of State of the jurisdiction of incorporation of the Borrower and its
Subsidiaries, as the case may be, as to
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the due existence and good standing of the Borrower and its
Subsidiaries therein;
(h) appropriate certificates of qualification to do business,
good standing and, where appropriate, authority to conduct business
under assumed name, issued in respect of the Borrower as of a recent
date by the Secretary of State or comparable official of each
jurisdiction in which the failure to be qualified to do business or
authorized so to conduct business could materially adversely affect the
business, operations or conditions, financial or otherwise, of the
Borrower;
(i) notice of appointment of the initial Authorized
Representative;
(j) certificate as of March 31, 1996 in the form of Exhibit I;
(k) evidence of insurance required by Section 7.05;
(l) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior
to the Closing Date in connection with the consummation of the
transactions contemplated hereby.
5.02 Conditions of Further Loans and Issuance of Letters of Credit. The
obligations of the Lenders to make any Loans, and NationsBank to issue Letters
of Credit and to make Swing Line Loans hereunder on or subsequent to the Closing
Date are subject to the satisfaction of the following conditions:
(a) the Agent shall have received a notice of such borrowing
or request if required by Article II hereof;
(b) the representations and warranties of the Borrower set
forth in Article VI hereof and in each of the other Loan Documents
shall be true and correct in all material respects on and as of the
date of such Advance, Swing Line Loan or issuance of such Letters of
Credit, as the case may be, with the same effect as though such
representations and warranties had been made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date and except that the financial statements
referred to in Section 6.01(f)(i) shall be deemed to be those financial
statements most recently delivered to the Agent and the Lenders
pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit,
Borrower shall have executed and delivered to NationsBank an
Application and Agreement for Letter of Credit in form and content
acceptable to NationsBank together with such other instruments and
documents as it shall request;
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(d) at the time of each such Advance, Swing Line Loan or
issuance of each Letter of Credit, as the case may be, no Default or
Event of Default specified in Article IX hereof, shall have occurred
and be continuing;
(e) immediately after giving effect to a Loan or Letter of
Credit the aggregate principal balance of all outstanding Loans and
Participations for each Lender and in the aggregate shall not exceed,
respectively, (i) such Lender's Revolving Credit Commitment or Letter
of Credit Commitment or (ii) the Total Revolving Credit Commitment or
the Total Letter of Credit Commitment; and
(f) immediately after giving effect to each Swing Line Loan,
the Swing Line Outstandings shall not exceed $10,000,000.
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ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. The Borrower represents and
warrants with respect to itself and to its Subsidiaries (which representations
and warranties shall survive the delivery of the documents mentioned herein and
the making of Loans), that:
(a) Organization and Authority.
(i) the Borrower and each Subsidiary is a corporation
or partnership duly organized and validly existing under the
laws of the jurisdiction of its incorporation or formation;
(ii) the Borrower and each Subsidiary (x) has the
requisite power and authority to own its properties and assets
and to carry on its business as now being conducted and as
contemplated in the Loan Documents, and (y) is qualified to do
business in every jurisdiction in which failure so to qualify
would have a material adverse effect on the business or
operations of the Borrower or any Subsidiary;
(iii) the Borrower has the power and authority to
execute, deliver and perform this Agreement and the Notes, and
to borrow hereunder, and the Borrower and each Subsidiary has
the power and authority to execute, deliver and perform each
of the other Loan Documents to which it is a party;
(iv) when executed and delivered, each of the Loan
Documents to which it is a party will be the legal, valid and
binding obligation or agreement, as the case may be, of the
Borrower and each Subsidiary, enforceable against the Borrower
and each Subsidiary in accordance with its terms, subject to
the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity which may limit the
availability of equitable remedies (whether in a proceeding at
law or in equity);
(b) Loan Documents. The execution, delivery and performance by
the Borrower of each of the Loan Documents:
(i) have been duly authorized by all requisite
corporate action (including any required shareholder approval)
of the Borrower and its Subsidiaries required for the lawful
execution, delivery and performance thereof;
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(ii) do not violate any provisions of (1) applicable
law, rule or regulation, (2) any order of any court or other
agency of government binding on the Borrower or any Subsidiary
of Borrower, or their respective properties, or (3) the
charter documents or by-laws of Borrower or any Subsidiary;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default, or an event
which, with notice or lapse of time, or both, would constitute
an event of default, under any indenture, agreement or other
instrument to which Borrower or any Subsidiary is a party, or
by which the properties or assets of Borrower or any
Subsidiary are bound;
(iv) will not result in the creation or imposition of
any Lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of Borrower or any Subsidiary
of Borrower.
(c) Solvency. Borrower is Solvent after giving effect to the
transactions contemplated by this Agreement and the other Loan
Documents.
(d) Subsidiaries and Stockholders. Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in
Schedule 6.01(d) hereto; Schedule 6.01(d) to this Agreement states as
of the date hereof the authorized and issued capitalization of each
Subsidiary listed thereon, the number of shares or other equity
interests of each class of capital stock or interest issued and
outstanding of each such Subsidiary and the number and/or percentage of
outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class
of capital stock or equity interest owned by Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each
such Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable; and Borrower and each such Subsidiary
owns beneficially and of record all the shares and other interests it
is listed as owning in Schedule 6.01(d), free and clear of any Lien.
(e) Ownership Interests. Borrower owns no interest in any
Person other than the Persons listed in Schedule 6.01(d) hereto;
(f) Financial Condition. (i) The Borrower has heretofore
furnished to each Lender an audited consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 1995 and the notes
thereto and the related consolidated statements of income, sources and
uses of cash and reconciliation of capital for the Fiscal Year then
ended as examined and certified by KPMG Peat Marwick and unaudited
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interim consolidated financial statements of the Borrower and its
Subsidiaries consisting of a consolidated balance sheet and related
statement of income, without notes, for and as of the quarter ended
March 31, 1996 as certified by an Authorized Representative. Except
as set forth therein, such financial statements (including the notes
thereto) present fairly the financial condition of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and as of the end
of such fiscal quarter and results of its operations and the changes
in its equity and cash flow for the Fiscal Year and fiscal quarter
then ended, all in conformity with Generally Accepted Accounting
Principles applied on a Consistent Basis, except that the interim
financial statements have been prepared in accordance with the
accounting principles applied, and in the manner used, for the
preparation of interim unaudited consolidated financial statements of
the Borrower and its Subsidiaries for previous interim fiscal periods
and present the consolidated financial condition of the Borrower and
its Subsidiaries as of their respective dates and the results of
operations of the Borrower and its Subsidiaries for the periods then
ended. Except as disclosed therein, neither the Borrower nor any
Subsidiaries has, as of the date hereof, any known and material direct
liability;
(ii) since March 31, 1996, there has been no material adverse
change in the condition, financial or otherwise, of the Borrower and
its Subsidiaries or in the businesses, properties and operations of the
Borrower and its Subsidiaries, nor have such businesses or properties,
been materially adversely affected as a result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo or act of God;
(iii) except as set forth in the financial statements referred
to in Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j)
hereto, neither Borrower nor any Subsidiary has incurred, other than in
the ordinary course of business, any material indebtedness,
obligations, commitments or other liability contingent or otherwise
which remain outstanding or unsatisfied;
(g) Title to Properties. The Borrower and its Subsidiaries
have title to their respective properties, subject to no transfer
restrictions or Liens of any kind, except for Liens permitted under
Section 8.08 hereof;
(h) Taxes. The Borrower and its Subsidiaries have filed or
caused to be filed all federal, state and local tax returns which are
required to be filed by them and except for taxes and assessments being
contested in good faith and against which reserves satisfactory to the
Borrower's independent certified public accountants have been
established, have paid or caused to be paid all taxes as shown on said
returns or on
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any assessment received by them, to the extent that such taxes have
become due;
(i) Other Agreements. Neither the Borrower nor any Subsidiary
is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions materially
adversely affecting the business, properties or assets,
operation or condition (financial or otherwise) of the
Borrower or of any Subsidiary; or
(ii) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which the Borrower
or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could have, a
material adverse effect on the business, operations or
condition, financial or otherwise, of the Borrower or any
Subsidiary;
(j) Litigation. Except as set forth in Schedule 6.01(j)
hereto, there is no action, suit or proceeding at law or in equity or
by or before any governmental instrumentality or agency or arbitral
body pending, or, to the knowledge of the Borrower, threatened by or
against the Borrower or any Subsidiary or affecting the Borrower or any
Subsidiary or any properties or rights of the Borrower or any
Subsidiary, which could reasonably be expected to materially adversely
affect the financial condition, business or operations of the Borrower
or any Subsidiary;
(k) Margin Stock. Neither the Borrower nor any Subsidiary owns
any "margin stock" as such term is defined in Regulation U, as amended
(12 C.F.R. Part 221), of the Board. The proceeds of the borrowings made
pursuant to Article II hereof will be used by the Borrower only for the
purposes set forth in Section 2.12 hereof. None of such proceeds will
be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring
any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the
Loans under this Agreement a "purpose credit" within the meaning of
said Regulation U or Regulation X (12 C.F.R. Part 224) of the Board.
Neither the Borrower nor any agent acting in its behalf has taken or
will take any action which might cause this Agreement or any of the
documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of
1934, as amended, or the Securities Act of 1933, as amended, or any
state securities laws, in each case as in effect on the date hereof;
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(l) Investment Company. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act of 1940, as
amended (15 U.S.C. Section 80a-1, et seq.). The application of the
proceeds of the Loans and repayment thereof by the Borrower and the
performance by the Borrower of the transactions contemplated by this
Agreement will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange Commission
thereunder, in each case as in effect on the date hereof;
(m) Patents, Etc. The Borrower and its Subsidiaries own or
have the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights,
trade names, trade name rights, trade secrets and copyrights necessary
to the conduct of their businesses as now conducted, without known
conflict with any patent, license, franchise, trademark, trade secrets
and confidential commercial or proprietary information, trade name,
copyright, rights to trade secrets or other proprietary rights of any
other Person;
(n) No Untrue Statement. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or
on behalf of the Borrower in accordance with or pursuant to any Loan
Document contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any such
representation or statement contained therein not misleading in any
material respect;
(o) No Consents, Etc. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship
between the Borrower or any Subsidiary and any other Person, nor any
circumstance in connection with the execution, delivery and performance
of the Loan Documents and the transactions contemplated hereby is such
as to require a consent, approval or authorization of, or filing,
registration or qualification with, any governmental or other authority
or any other Person on the part of the Borrower or any Subsidiary as a
condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by, this Agreement or the
other Loan Documents or if so, such consent, approval, authorization,
filing, registration or qualification has been obtained or effected, as
the case may be;
(p) ERISA.
(i) None of the employee benefit plans maintained at any
time by the Borrower or any Subsidiary or the trusts
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created thereunder has engaged in a prohibited transaction which could
subject any such employee benefit plan or trust to a material tax or
penalty on prohibited transactions imposed under Internal Revenue Code
Section 4975 or ERISA;
(ii) None of the employee benefit plans maintained
at any time by the Borrower or any Subsidiary which are employee
pension benefit plans and which are subject to Title IV of ERISA or
the trusts created thereunder has been terminated so as to result in a
material liability of the Borrower under ERISA nor has any such
employee benefit plan of the Borrower or any Subsidiary incurred any
material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA, other than for required insurance
premiums which have been paid or are not yet due and payable; neither
the Borrower nor any Subsidiary has withdrawn from or caused a partial
withdrawal to occur with respect to any Multi-employer Plan resulting
in any assessed and unpaid withdrawal liability; the Borrower and the
Subsidiaries have made or provided for all contributions to all such
employee pension benefit plans which they maintain and which are
required as of the end of the most recent fiscal year under each such
plan; neither the Borrower nor any Subsidiary has incurred any
accumulated funding deficiency with respect to any such plan, whether
or not waived; nor has there been any reportable event, or other event
or condition, which presents a material risk of termination of any
such employee benefit plan by such Pension Benefit Guaranty
Corporation;
(iii) The present value of all vested accrued
benefits under the employee pension benefit plans which are subject to
Title IV of ERISA, maintained by the Borrower or any Subsidiary, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such employee benefit plans
allocable to such benefits;
(iv) The consummation of the Loans and the
issuance of the Letters of Credit provided for in Article II and
Article III will not involve any prohibited transaction under ERISA
which is not subject to a statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each
employee pension benefit plan subject to Title IV of ERISA, maintained
by the Borrower or any Subsidiary, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA and other
applicable laws, regulations and rules;
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(vi) There has been no withdrawal liability incurred and
unpaid with respect to any Multi-employer Plan to which the Borrower or
any Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have the
respective meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section 4975
and ERISA;
(viii) Neither the Borrower nor any Subsidiary has
any liability not disclosed on any of the financial statements
furnished to the Lenders pursuant to Section 7.01(f) hereof,
contingent or otherwise, under any plan or program or the equivalent
for unfunded post-retirement benefits, including pension, medical and
death benefits, which liability would have a material adverse effect
on the financial condition of the Borrower or any Subsidiary.
(q) No Default. As of the date hereof, there does not exist
any Default or Event of Default hereunder;
(r) Hazardous Materials. Neither the Borrower nor, to the best
of Borrower's knowledge, any previous owner or operator of the
Properties or any other Person, has generated, stored, or disposed of
any Hazardous Material on any portion of the Properties, or transferred
any Hazardous Material from the Properties to any other location,
giving rise to any liability of the Borrower or any Subsidiary which
would have a materially adverse effect on the Borrower or any
Subsidiary. The Borrower and each Subsidiary is in compliance with all
applicable environmental laws and the Borrower has not been notified of
any action, suit, proceeding or investigation which calls into question
compliance by the Borrower or any Subsidiary with any environmental
laws or which seeks to suspend, revoke or terminate any license, permit
or approval necessary for the generation, handling, storage, treatment
or disposal of any Hazardous Material;
(s) Material Agreements. The agreements identified on Schedule
6.01(s) hereto are all of the material business agreements to which the
Borrower or any Subsidiary is a party or by which any of them is
affected. Each Material Agreement is in full force and effect, and the
Borrower and its Subsidiaries are in compliance in all material
respects with the terms and provisions applicable to them contained in
such Material Agreement.
(t) RICO. Neither the Borrower nor any Subsidiary is engaged
in or has engaged in any course of conduct that could subject any of
their respective properties to any Lien, seizure or other forfeiture
under any criminal law, racketeer
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influenced and corrupt organizations law, civil or criminal, or other
similar laws;
(u) Employment Matters. The Borrower and all Subsidiaries are
in compliance in all material respects with all applicable laws, rules
and regulations pertaining to labor or employment matters, including
without limitation those pertaining to wages, hours, occupational
safety and taxation and there is neither pending or threatened any
material litigation, administrative proceeding nor, to the knowledge of
the Borrower, any investigation, in respect of such matters;
(v) REIT. The Borrower has done all things necessary to
qualify as a REIT, has been organized in conformity with the
requirements for qualification as a REIT and its method of operation as
described in the Registration Statement will permit it to meet the
requirements for qualification and taxation as an REIT;
(w) Leases. Each of the Leases is in full force and effect and
each of Borrower, the lessor under Leases and each Lessee under the
Leases is in compliance with all of the terms and conditions of the
Leases to which they are a party.
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ARTICLE VII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will and will
cause each Subsidiary to:
7.01 Financial Reports, Etc. (a) as soon as practical and in any event
within 90 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) a consolidated balance
sheet of the Borrower and its Subsidiaries, and the notes thereto, and the
related consolidated statements of income, sources and uses of cash and
reconciliation of capital and the respective notes thereto, for such Fiscal
Year, setting forth in each case comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis and containing, opinions of
KPMG Peat Marwick, or other such independent certified public accountants
selected by the Borrower and approved by the Required Lenders, which are
unqualified as to the scope of the audit performed and as to the "going concern"
status of the Borrower; and (ii) a certificate of an Authorized Representative
demonstrating compliance with Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.06, 8.10,
8.11 and 8.16 of this Agreement, which certificate shall be in the form attached
hereto as Exhibit I;
(b) as soon as practical and in any event within 45 days after the end
of each calendar quarter (except the last month of the Fiscal Year), deliver to
the Agent and each Lender (i) a consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such reporting period, the related
consolidated statements of income, sources and uses of cash and reconciliation
of capital for such reporting period and for the period from the beginning of
the Fiscal Year through the end of such reporting period, accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such reporting period and the results of their
operations and the changes in their financial position for such reporting
period, such financial statements to be prepared in the manner used and applying
accounting principles, for the preparation of interim unaudited financial
statements of the Borrower and its Subsidiaries for previous interim fiscal
periods, and (ii) containing computations for such quarter comparable to that
required pursuant to Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required by
Section 7.01(a)(i) hereof, deliver to the Agent and each Lender a letter from
the Borrower's accountants specified in Section 7.01(a)(i) hereof stating that
in performing the audit
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necessary to render an opinion on the financial statements delivered under
Section 7.01(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); and if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report submitted
to the Borrower or any of its Subsidiaries by independent accountants in
connection with any annual, interim or special audit of the Borrower or any of
its Subsidiaries;
(e) promptly, from time to time, deliver to the Agent and each Lender
upon request of the Agent copies of any notices, certificates, financial
statements, agreements or other documents delivered to the Borrower by makers of
Third Party Notes, Lessees or Guarantors; and
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and each
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request. The Agent and the Lenders are hereby
authorized to deliver a copy of any such financial information delivered
hereunder to the Lenders (or any affiliate of any Lender) or to the Agent, to
any regulatory authority having jurisdiction over any of the Lenders pursuant to
any written request therefor, or, subject to Section 11.01(e) hereof, to any
other Person who shall acquire or consider the acquisition of a participation
interest in or assignment of any Loan or Letter of Credit permitted by this
Agreement.
7.02 Maintain Properties. Maintain or cause to be maintained all
properties necessary to its operations in good working order and condition
(ordinary wear and tear excepted) and make all needed repairs, replacements and
renewals as are necessary to conduct its business in accordance with customary
business practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits and maintain
its license or qualification to do business as a foreign corporation and good
standing in each jurisdiction in which its ownership or lease of property or the
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nature of its business makes such license or qualification necessary.
7.04 Regulations and Taxes. Comply with or contest in good faith all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties except
liabilities being contested in good faith and against which adequate reserves
have been established.
7.05 Insurance. (i) Keep or cause Lessees to keep all of its insurable
properties adequately insured at all times with responsible insurance carriers
against loss or damage by fire and other hazards as are customarily insured
against by similar businesses owning such properties similarly situated, (ii)
maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property having such limits, deductibles, exclusions and co-insurance and other
provisions providing no less coverage than that specified in Schedule 7.05
attached hereto, such insurance policies to be in form satisfactory to the
Agent, and (iii) maintain insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes).
7.06 True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by Generally Accepted
Accounting Principles with respect to doubtful accounts and all taxes,
assessments, charges, levies and claims and with respect to its business in
general, and include such reserves in interim as well as year-end financial
statements.
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make
full and timely payment of the principal of and interest on the Notes and all
other Obligations whether now existing or hereafter arising; and (b) duly comply
with all the terms and covenants contained in all Loan Documents and other
instruments and documents given to the Agent or the Lenders pursuant hereto or
thereto.
7.08 Right of Inspection. Permit any Person designated by any Lender or
the Agent at the Lender's or Agent's expense, as the case may be, to visit and
inspect any of the properties, corporate books and financial reports of the
Borrower and its Subsidiaries, and to discuss their respective affairs, finances
and accounts with their principal officers and independent certified public
accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
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7.09 Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
regulatory authority with respect to the conduct of its business.
7.10 Covenants Extending to Subsidiaries. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.02 through 7.09, inclusive.
7.11 Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary, cause such officer or an
Authorized Representative to promptly notify the Agent of the nature thereof,
the period of existence thereof, and what action the Borrower proposes to take
with respect thereto.
7.12 Suits or Other Proceedings. Upon an officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary, or any attachment, levy, execution or
other process being instituted against any assets of the Borrower or any
Subsidiary, in an aggregate amount greater than $100,000 not otherwise covered
by insurance, promptly deliver to the Agent written notice thereof stating the
nature and status of such litigation, dispute, proceeding, levy, execution or
other process.
7.13 Environmental Reports. Promptly provide to the Agent true,
accurate and complete copies of any and all documents, including reports,
submissions, notices, orders, directives, findings and correspondence made by
Borrower to the United States Environmental Protection Agency ("EPA"), the
United States Occupational Safety and Health Administration ("OSHA") or to any
other federal, state or local authority pursuant to any federal, state or local
law, code or ordinance and all rules and regulations promulgated thereunder
which require informational submissions concerning environmental, health or
safety matters.
7.14 Notice of Discharge of Hazardous Material or Environmental
Complaint. Give to the Agent immediate written notice of any complaint, order,
directive, claim, citation or notice by any governmental authority or any Person
to Borrower or any successor with respect to (i) air emissions, (ii) spills,
releases or discharges to soils or improvements located thereon, surface water,
groundwater or the sewer, septic system or waste treatment, storage or disposal
systems servicing any properties of Borrower, (iii) noise emissions, (iv) solid
or liquid waste disposal, or (v) the use, generation, storage, transportation or
disposal of Hazardous Material. Such notices shall include, among other
information, the name of the party who filed the claim, the nature of the claim
and the actual or potential amount of the claim. Borrower shall promptly comply
with its obligations under
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law with regard to such matters. However, Borrower shall not be obligated to
give such notice to the Agent of discharge or existence of any Hazardous
Material which occurs legally in accordance with and pursuant to the terms and
conditions of a valid governmental permit, license, certificate or approval
therefor.
7.15 Indemnification. The Borrower hereby agrees to defend, indemnify
and hold the Agent and the Lenders harmless from and against any and all claims,
losses, liabilities, damages and expenses (including, without limitation,
cleanup costs and reasonable attorneys' fees) arising directly or indirectly
from, out of or by reason of the handling, storage, treatment, emission or
disposal of any Hazardous Material by or in respect of the Borrower or any
Subsidiary or property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 7.15 shall survive repayment of the
Obligations, occurrence of the Revolving Credit Termination Date and expiration
or termination of this Agreement.
7.16 Further Assurances. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause to be duly executed and delivered, to
the Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement and the
other Loan Documents.
7.17 ERISA Requirement. Comply in all material respects with all
requirements of ERISA applicable to it and furnish to the Agent as soon as
possible and in any event (i) within thirty (30) days after the Borrower knows
or has reason to know that any reportable event with respect to any employee
benefit plan maintained by the Borrower or any Subsidiary which could give rise
to termination or the imposition of any material tax or penalty has occurred,
written statement of an Authorized Representative describing in reasonable
detail such reportable event and any action which the Borrower or applicable
Subsidiary proposes to take with respect thereto, together with a copy of the
notice of such reportable event given to the PBGC or a statement that said
notice will be filed with the annual report of the United States Department of
Labor with respect to such plan if such filing has been authorized, (ii)
promptly after receipt thereof, a copy of any notice that the Borrower or any
Subsidiary may receive from the PBGC relating to the intention of the PBGC to
terminate any employee benefit plan or plans of the Borrower or any Subsidiary
or to appoint a trustee to administer any such plan, and (iii) within 10 days
after a filing with the PBGC pursuant to Section 412(n) of the Code of a notice
of failure to make a required installment or other payment with respect to a
plan, a certificate of an Authorized Representative setting forth details as to
such failure and the action that the Borrower or its affected Subsidiary, as
applicable, proposes to take with respect thereto, together with a copy of such
notice given to the PBGC.
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7.18 REIT Status. Do all things required to qualify as and to maintain
its status as a REIT.
7.19 Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.12 hereof.
7.20 New Subsidiaries. Simultaneously with the acquisition or creation
of any Subsidiary, cause to be delivered to the Agent for the benefit of the
Lenders each of the following:
(i) a Guaranty Agreement in a form acceptable to the Agent
pursuant to which such Subsidiary unconditionally guarantees payment of
the Obligations;
(ii) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Guaranty Agreement provided in the foregoing
clause (i) and addressed to the Agent and the Lenders, in form and
substance reasonably acceptable to the Agent (which opinion may include
assumptions and qualifications of similar effect to those contained in
the opinions of counsel delivered pursuant to Section 5.01(b) hereof),
to the effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
organization, has the requisite power and authority to own its
properties and conduct its business as then owned and then
proposed to be conducted and is duly qualified to transact
business and is in good standing as a foreign corporation or
limited partnership in each other jurisdiction in which the
character of the properties owned or leased, or the business
carried on by it, requires such qualification;
(B) the execution, delivery and performance of the
Guaranty Agreement described in clause (i) of this Section
7.20 to which such Subsidiary is a signatory has been duly
authorized by all requisite corporate or partnership action
(including any required shareholder or partner approval), such
agreement has been duly executed and delivered and constitutes
the valid and binding obligation of such Subsidiary,
enforceable against such Subsidiary in accordance with its
terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may
limit the availability of equitable remedies (whether in a
proceeding at law or in equity); and
(iii) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly
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called and conducted meetings (or duly effected consent actions) of
the Board of Directors, partners, or appropriate committees thereof
(and, if required by such charter documents, bylaws or by applicable
laws, of the shareholders or partners) of such Subsidiary authorizing
the actions and the execution and delivery of documents described in
clause (i) of this Section 7.20 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by the Agent to
the Lenders) that such Subsidiary is Solvent as of such date and after
giving effect to the Guaranty Agreement.
7.21 Swap Agreements. If at any time the Revolving Credit Debit Balance
equals or exceeds $67,000,000 and thereafter continues to exceed $60,000,000 and
the three month Eurodollar Rate increases by 1% within a period of twelve months
from and after the date the Revolving Credit Debit Balance equals or exceeds
$67,000,000 the Borrower will enter into Swap Agreements which protect the
Borrower with respect to interest rate fluctuations (in form and substance
reasonably acceptable to the Majority Lenders) in a notional amount equal to not
less than 50% of the average daily Revolving Credit Debit Balance.
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ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
8.01 Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth to be less than the sum of (A) $152,000,000 at the time of the initial
Advance under Section 5.01 plus (B) after the Initial Advance 95% of the
proceeds of each sale of equity interest (including those constituting
Indebtedness exchangeable, convertible or exercisable into equity interests) in
the Borrower or any Subsidiary.
8.02 Consolidated Interest Coverage Ratio. Permit at any time the
Consolidated Interest Coverage Ratio to be 1.50 to 1.00 or less.
8.03 Consolidated Leverage Ratio. Permit at any time the Consolidated
Leverage Ratio to be .60 to 1.00 or greater.
8.04 Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio to be (i) .55 to 1.00 or greater during the period from the
Closing Date through June 30, 1997 and (ii) .50 to 1.00 or greater at all times
thereafter.
8.05 Consolidated Fixed Charge Ratio. Permit at any time the
Consolidated Fixed Charge Ratio to be 1.00 to 1.00 or less.
8.06 Required Coverage Ratio. At all times that the Senior Leverage
Ratio is (i) greater than or equal to .50 to 1.00 permit the Required Coverage
Ratio to be less than 1.60 to 1.00, or (ii) less than .50 to 1.00 permit the
Required Coverage Ratio to be less than 1.50 to 1.00.
8.07 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(i) Indebtedness owed the Agent or the Lenders in connection
with this Agreement;
(ii) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(iii) additional Indebtedness of not to exceed in the
aggregate outstanding amount of $1,000,000 incurred to purchase
equipment;
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(iv) secured Non-recourse Indebtedness not exceeding in the
aggregate $75,000,000;
(v) secured Non-recourse Indebtedness of Capstone of Las
Vegas, Ltd. in an outstanding amount of $23,300,000 which Indebtedness
shall be paid in accordance with its terms;
(vi) existing Subordinated Indebtedness described on Schedule
8.07; and
(vii) additional Subordinated Indebtedness.
8.08 Liens. Incur, create or permit to exist any pledge, Lien, charge
or other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by the Borrower or any of its
Subsidiaries, other than
(i) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained in accordance with Generally Accepted Accounting Principles;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
120 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with Generally Accepted Accounting
Principles;
(iii) Liens incurred or deposits made in the ordinary course
of business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment insurance
and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(iv) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of the Borrower or any Subsidiary and which do not materially detract
from the value of the property to which they attach or materially
impair the use thereof to the Borrower or any Subsidiary;
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(v) purchase money Liens to secure Indebtedness permitted
under Section 8.07(iii) hereof so long as such Indebtedness is incurred
to purchase equipment, the Indebtedness represents not less than 75% of
the purchase price of such assets, and no other property other than the
property acquired with the proceeds of such Indebtedness secures such
Indebtedness; and
(vi) Liens on the leasehold interest of Capstone of Las Vegas,
Ltd. to secure Indebtedness described in Section 8.07(v); and
(vii) Liens securing Indebtedness permitted under Section 8.07
(iv).
8.09 Transfer of Assets. Sell, lease, transfer or otherwise dispose of
(i) any assets of the Borrower or its Subsidiaries in any Fiscal Year which
assets cost in the aggregate $5,000,000 or more unless Borrower shall have
furnished the Agent with a certificate in the form of Exhibit I demonstrating
that on a historical basis after giving effect to the sale of such assets for
the Four-Quarter Period most recently ended no Default or Event of Default would
exist hereunder.
8.10 Investments; Acquisitions. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, Borrower and its Subsidiaries may maintain investments or
invest in or acquire
(i) Eligible Securities;
(ii) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(iii) loans and investments described on Schedule 8.10
attached hereto;
(iv) loans and investments in Subsidiaries so long as Borrower
shall have and such Subsidiary shall immediately fulfill the
requirements of Section 7.20;
(v) Third Party Loans;
(vi) the acquisition of all or substantially all of the assets
of a Person if such assets consist of a health care related property
and after giving effect to such acquisition no Default or Event of
Default exists hereunder; and
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(vii) loans in an aggregate principal amount not to exceed
$1,000,000 to executive officers.
8.11 Capital Expenditures. Make or permit to be made during any Fiscal
Year on a non-cumulative basis (so that any amounts not expended in one Fiscal
Year may not be expended in a subsequent Fiscal Year) Capital Expenditures in
excess of (i) $3,000,000 with respect to any one Property or a new facility
acquired by Borrower and (ii) $20,000,000 in the aggregate; provided, however,
that expenditures incurred to acquire new facilities (not connected to or a part
of an existing facility or constituting renovations or improvements to a then
owned facility) shall not be deemed Capital Expenditures.
8.12 Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) liquidate,
wind-up or dissolve or sell, transfer or lease or otherwise dispose of all or a
substantial part of its assets (other than sales in the ordinary course of
business); provided, however, (i) any Subsidiary of the Borrower may merge or
transfer all or substantially all of its assets into or consolidate with any
wholly-owned Subsidiary of the Borrower, (ii) any Person may merge with the
Borrower if the Borrower shall be the survivor thereof and such merger shall not
cause, create or result in the occurrence of any Default or Event of Default
hereunder and (iii) Required Lenders shall have consented in writing to the
merger of any Person, other than a wholly-owned Subsidiary, into Borrower.
8.13 Transactions with Affiliates. Enter into any transaction after the
date hereof, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower, except (a) that such Persons may render services
to the Borrower or its Subsidiaries for compensation at the same rates generally
paid by Persons engaged in the same or similar businesses for the same or
similar services and (b) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's (or any Subsidiary's) business
consistent with past practice of the Borrower and its Subsidiaries and upon fair
and reasonable terms no less favorable to the Borrower (or any Subsidiary) than
would be obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
8.14 ERISA. With respect to all employee pension benefit plans
maintained by the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as
to incur any liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA;
(ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust
created thereunder which would subject the Borrower or
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a Subsidiary to a tax or penalty or other liability on prohibited
transactions imposed under Internal Revenue Code Section 4975 or
ERISA;
(iii) fail to pay to any such employee pension benefit plan
any contribution which it is obligated to pay under the terms of such
plan;
(iv) allow or suffer to exist any accumulated funding
deficiency, whether or not waived, with respect to any such employee
pension benefit plan;
(v) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the Pension Benefit Guaranty Corporation of any such
employee pension benefit plan that is a Single Employer Plan, which
termination could result in any liability to the Pension Benefit
Guaranty Corporation; or
(vi) incur any withdrawal liability with respect to any
Multi-employer Plan.
8.15 Fiscal Year. Change its Fiscal Year.
8.16 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into a Borrower permitted
pursuant to Section 8.12.
8.17 Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except in regard to Indebtedness.
8.18 Leases. Permit at any time weighted average life to the maturity
of all the Leases to be less than one year following the Revolving Credit
Termination Date.
8.19 Investment Policies. Except as otherwise permitted by the bylaws
of the Borrower, deviate from the investment policies of the Borrower as
described in Borrower's Registration Statement.
8.20 Subordinated Indebtedness. Amend, modify, supplement or otherwise
change the provision of any agreement, indenture, debenture, note or other
instrument or document containing terms or conditions pursuant to which
Subordinated Indebtedness is created or incurred.
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8.21 Negative Pledge. Enter into any agreement, arrangement or
understanding, other than this Agreement, limiting the right of the Borrower or
any Subsidiary to create any Lien, encumbrance or security interest in or with
respect to any of their assets.
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ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or Reimbursement Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Article II or Article III hereof, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or of any fees or other amounts
payable to the Lenders, the Agent or NationsBank under the Loan
Documents on the date on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 7.06, 7.07(a), 7.08, 7.11, 7.18
or Article VIII hereof; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or the
Borrower becomes aware of such default, or if a default shall be made
in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan
Documents (beyond any applicable grace period, if any, contained
therein) or in any instrument or document evidencing or creating any
obligation, guaranty, or Lien in favor of the Agent or the Lenders or
delivered to the Agent or the Lenders in connection with or pursuant to
this Agreement or any of the Obligations, or if any Loan Document
ceases to be in full force and effect (other than by reason of any
action by the Agent), or if without the written consent of the Agent,
this Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than in accordance with
its terms in the absence of default or by reason of any action by the
Agent); or
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(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Loans) of the Borrower or
of any Subsidiary, or (ii) in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by the Borrower or
any Subsidiary, and such default shall continue for more than the
period of grace, if any, therein specified, or if such default shall
permit the holder of any such Indebtedness to accelerate the maturity
thereof; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the Agent or
any Lender by or on behalf of the Borrower or any Subsidiary pursuant
to or in connection with this Agreement or the other Loan Documents, or
otherwise, shall be false or misleading in any material respect when
given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state, which petition is
not dismissed within sixty (60) days; or if, under the provisions of
any other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of the Borrower or any
Subsidiary or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Borrower or any Subsidiary any proceeding or
petition seeking reorganization, arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of
the
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United States of America or any state which proceeding or petition
remains undismissed for a period of sixty (60) days; or if the
Borrower or any Subsidiary takes any action to indicate its consent to
or approval of any such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $100,000 is rendered against the Borrower or any
Subsidiary, or (ii) there is any attachment, injunction or execution
against any of the Borrower's or any Subsidiary's properties for any
amount in excess of $100,000; and such judgment, attachment, injunction
or execution remains unpaid, unstayed, undischarged, unbonded or
undismissed for a period of thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary, taken as a whole; or
(k) if (i) the Borrower or any Subsidiary shall engage in any
prohibited transaction (as described in Section 8.14(ii) hereof), which
is not subject to a statutory or administrative exemption, involving
any employee pension benefit plan of the Borrower or any Subsidiary,
(ii) any accumulated funding deficiency (as referred to in Section
8.14(iv) hereof), whether or not waived, shall exist with respect to
any Single Employer Plan, (iii) a reportable event (as referred to in
Section 8.14(v) hereof) (other than a reportable event for which the
statutory notice requirement to the Pension Benefit Guaranty
Corporation has been waived by regulation) shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed to administer or to terminate, any Single Employer
Plan, which reportable event or institution or proceedings is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Single Employer Plan for purposes of Title IV of
ERISA, and in the case of such a reportable event, the continuance of
such reportable event shall be unremedied for sixty (60) days after
notice of such reportable event pursuant to Section 4043(a), (c) or (d)
of ERISA is given, as the case may be, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, and such termination
results in a material liability of the Borrower or any Subsidiary to
such Single Employer Plan or the Pension Benefit Guaranty Corporation,
(v) the Borrower or any Subsidiary shall withdraw from a Multi-employer
Plan for purposes of Title IV of ERISA, and, as a result of any such
withdrawal, the Borrower or any Subsidiary shall incur withdrawal
liability to such Multi-employer Plan, or (vi) any other event or
condition shall occur or exist; and in each
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case in clauses (i) through (vi) of this Section 9.01(k), such event
or condition, together with all other such events or conditions, if
any, could subject the Borrower or any Subsidiary to any tax, penalty
or other liabilities, and in each such case the event or condition is
not remedied to the satisfaction of the Required Lenders within ninety
(90) days after the earlier of (i) receipt of notice of such event or
condition by the Authorized Representative from the Agent or (ii) the
Borrower becomes aware of such event or condition; or
(l) if the Borrower or any Subsidiary shall breach any of the
terms or conditions of any agreement under which any Rate Hedging
Obligation permitted pursuant to Section 8.17 is created and such
breach shall continue beyond any grace period, if any, relating thereto
pursuant to the terms of such Obligation, or the Borrower or any
Subsidiary shall disaffirm or seek to disaffirm any such agreement or
any of its obligations thereunder; or
(m) if Borrower shall not qualify as of the date of the
initial Advance and at all times thereafter as a REIT; or
(n) the payment or redemption of or the occurrence of any
event giving rise to the right to require payment or redemption of any
Subordinated Indebtedness; or
(o) if at any time more than 50% of outstanding securities of
the Borrower having voting rights in the election of directors (i) is
owned by a Person or group of Persons acting together or in concert
with one another or (ii) is owned beneficially by five (5) or less
Persons;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders to make further
Loans or of NationsBank to issue Letters of Credit terminated,
whereupon the obligation of each Lender to make further Loans
or of NationsBank to make Swing Line Loans or issue Letters of
Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any
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instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the
above, if there shall occur an Event of Default under clause
(g) or (h) above, then the obligation of the Lenders to lend
and NationsBank to make Swing Line Loans and to issue Letters
of Credit hereunder shall automatically terminate and any and
all of the Obligations shall be immediately due and payable
without the necessity of any action by the Agent or the
Required Lenders or notice to the Agent or the Lenders;
(B) the Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in
accordance with the LC Account Agreement in an amount equal to
the amount of any Letters of Credit remaining undrawn or
unpaid, as collateral security for the repayment of any future
drawings or payments under such Letters of Credit and the
Borrower shall forthwith deposit and pay such amounts and such
amounts shall be held by the Agent pursuant to the terms of
the applicable Application and Agreement for Letter of Credit;
and
(C) the Agent and the Lenders shall have all of the
rights and remedies available under the Loan Documents or
under any applicable law.
9.02 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
9.04 No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
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9.05 Default. The Agent and the Lenders shall have no right to
accelerate any of the Loans upon, or to institute any action or proceeding
before any court to realize upon collateral as a result of, the occurrence of
any Default which shall not also constitute an Event of Default; provided,
however, nothing contained in this sentence shall in any respect impair or
adversely affect the right, power and authority of the Agent and the Lenders (i)
to take any action expressly required or permitted to be taken under the Loan
Documents upon the occurrence of any Default (and including any action or
proceeding which the Agent may determine to be necessary or appropriate in
furtherance of any such expressly authorized action) and (ii) to take any action
provided under the Loan Documents or otherwise available by statute, at law or
in equity upon the occurrence of any Default.
9.06 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder shall be applied by the Agent in the following order:
(i) amounts due to the Lenders pursuant to Sections 2.09,
3.03, 7.15, 11.05 and 11.11 hereof;
(ii) amounts due to (A) NationsBank pursuant to Section 3.04
hereof, and (B) the Agent pursuant to Section 10.11 hereof;
(iii) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to NationsBank);
(iv) payments of principal on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to NationsBank);
(v) payment of cash amounts to the Agent in respect of
Outstanding Letters of Credit pursuant to Section 9.01(B) hereof;
(vi) payment of Obligations owed a Lender or Lenders pursuant
to Swap Agreements on a pro rata basis according to amounts owed;
(vii) payments of all other amounts due under this Agreement,
if any, to be applied for the ratable benefit of the Lenders; and
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(viii) any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by applicable law.
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ARTICLE X
The Agent
10.01 Appointment. Each Lender (including NationsBank in its capacity
as issuer of the Letters of Credit) hereby irrevocably designates and appoints
NationsBank as the Agent of the Lenders under this Agreement, and each of the
Lenders hereby irrevocably authorizes NationsBank as the Agent for such Lender,
to take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers as are expressly delegated to
the Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any of the Lenders, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
10.02 Attorneys-in-fact. The Agent may execute any of its duties under
this Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence, gross negligence or willful
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.03 Limitation on Liability. Neither the Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
shall be responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any of its
Subsidiaries, or any officer or representative thereof contained in this
Agreement or in any of the other Loan Documents, or in any certificate, report,
statement or other document referred to or provided for in or received by the
Agent under or in connection with this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any of the other Loan Documents, or for any failure of the Borrower to perform
its obligations thereunder, or for any recitals, statements, representations or
warranties made, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any collateral. The Agent shall not be under
any obligation to any of the Lenders to ascertain or to inquire as to the
observance or performance of any of the terms, covenants or conditions of this
Agreement or any of the other Loan Documents on the part of the Borrower or to
inspect the properties, books or records of the Borrower or its Subsidiaries.
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10.04 Reliance. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent
certificate, affidavit, letter, cablegram, telegram, telecopy or telex message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless an Assignment and Acceptance shall have
been filed with and accepted by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive advice or concurrence of the Lenders or the Required Lenders as
provided in this Agreement or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all present and
future holders of the Notes.
10.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender, the Authorized
Representative or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
promptly give notice thereof to the Lenders. The Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided that, unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable in the best interests of the Lenders.
10.06 No Representations. Each Lender expressly acknowledges that
neither the Agent nor any of its affiliates has made any representations or
warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the financial condition, creditworthiness, affairs, status
and nature of the Borrower and its Subsidiaries and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
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independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and to make such investigation
as it deems necessary to inform itself as to the status and affairs, financial
or otherwise, of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any of its Subsidiaries
which may come into the possession of the Agent or any of its affiliates.
10.07 Indemnification. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrower or its
Subsidiaries and without limiting any obligations of the Borrower or any
Subsidiary so to do), ratably according to the respective principal amount of
the Notes held by them (or, if no Notes are outstanding, ratably in accordance
with their respective Applicable Commitment Percentages as then in effect) from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time (including without limitation at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement or any
other document contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Obligations and
the termination of this Agreement.
10.08 Lender. The Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower and
its Subsidiaries as though it were not the Agent hereunder. With respect to its
Loans made or renewed by it and any Note issued to it, the Agent shall have the
same rights and powers under this Agreement as any Lender and may exercise the
same as though it were not the Agent, and the terms "Lender" and "Lenders"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity.
10.09 Resignation. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders may appoint, with the consent, so long as
there shall not have occurred and be continuing a Default or Event of Default,
of the Borrower, which consent shall
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not be unreasonably withheld, a successor Agent for the Lenders, which
successor Agent shall be a commercial bank organized under the laws of the
United States or any state thereof, having a combined surplus and capital of
not less than $500,000,000, whereupon such successor Agent shall succeed to the
rights, powers and duties of the former Agent and the obligations of the former
Agent shall be terminated and canceled, without any other or further act or
deed on the part of such former Agent or any of the parties to this Agreement;
provided, however, that the former Agent's resignation shall not become
effective until such successor Agent has been appointed and has succeeded of
record to all right, title and interest in any collateral held by the Agent;
provided, further, that if the Required Lenders and, if applicable, the
Borrower cannot agree as to a successor Agent within ninety (90) days after
such resignation, the Agent shall appoint a successor Agent which satisfies the
criteria set forth above in this Section 10.09 for a successor Agent and the
parties hereto agree to execute whatever documents are necessary to effect such
action under this Agreement or any other document executed pursuant to this
Agreement; provided, however that in such event all provisions of this
Agreement and the Loan Documents, shall remain in full force and effect. After
any retiring Agent's resignation hereunder as Agent, the provisions of this
Article X shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
10.10 Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment pursuant to Article IV), then (A) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their Obligations so
that the amount of the Obligations held by each of the Lenders shall be pro rata
and (B) such other adjustments shall be made from time to time as shall be
equitable to insure that the Lenders share such payments ratably; provided,
however, that for purposes of this Section 10.10 the term "pro rata" shall be
determined with respect to both the Revolving Credit Commitment of each Lender
and to the Total Revolving Credit Commitments after subtraction in each case of
amounts, if any, by which any such Lender has not funded its share of the
outstanding Loans and Reimbursement Obligations. If all or any portion of any
such excess payment is thereafter recovered from the Lender which received the
same, the purchase provided in this Section 10.10 shall be rescinded to the
extent of such recovery, without interest. The Borrower expressly consents to
the foregoing arrangements and agrees that each Lender so purchasing a portion
of the other Lenders' Obligations may exercise all rights of payment (including,
without limitation, all rights of set-off, banker's lien or counterclaim) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
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10.11 Fees. At such time as there shall be more than one Lender
hereunder and at all times thereafter, the Borrower agrees to pay to the Agent,
for its individual account, an annual Agent's fee in an amount as agreed to by
the Agent and the Borrower, such fee to be paid quarterly in advance commencing
on the first day after the date there shall be more than one Lender.
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ARTICLE XI
Miscellaneous
11.01 Assignments and Participations.
(a) At any time after the Closing Date each Lender may, with the prior
consent of the Agent and, so long as no Default or Event of Default exists
hereunder, the Borrower, which consents shall not be unreasonably withheld (it
being understood that consent may be withheld by the Borrower if such assignment
would subject the Borrower to the payment of any additional amounts pursuant to
the provisions of Section 4.06 hereof), assign to one or more banks or financial
institutions all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of the Note payable to its
order); provided, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all of the assigning Lender's rights and obligations
(including Loans and Participations) under this Agreement, (ii) for each
assignment involving the issuance and transfer of a Note, the assigning Lender
shall execute an Assignment and Acceptance and the Borrower hereby consents to
execute a replacement Note to give effect to the assignment, (iii) the minimum
Revolving Credit Commitment which shall be assigned is $5,000,000 (together with
which the assigning Lender's applicable portion of Participations and the Letter
of Credit Commitment shall also be assigned) and (iv) such assignee shall have
an office located in the United States. Upon such execution, delivery, approval
and acceptance, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder or under such Note have been
assigned or negotiated to it pursuant to such Assignment and Acceptance have the
rights and obligations of a Lender hereunder and a holder of such Note and (y)
the assignor thereunder shall, to the extent that rights and obligations
hereunder or under such Note have been assigned or negotiated by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement. No assignee shall have the right to further
assign its rights and obligations pursuant to this Section 11.01. Any Lender who
makes an assignment shall pay to the Agent a one-time administrative fee of
$2,500.00 which fee shall not be reimbursed by the Borrower.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) the assignment made
under such Assignment and Acceptance is made under such Assignment and
Acceptance without recourse; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any Subsidiary or the performance or observance by
the Borrower or any Subsidiary of any of its obligations under any Loan Document
or any other instrument
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or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements delivered pursuant to Section 6.01(f) or Section 7.01, as the case
may be, and such other Loan Documents and other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement, the Notes and the other Loan Documents as are delegated to the Agent
by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender and a holder of such
Notes.
(c) The Agent shall maintain at its address referred to herein a copy
of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Agent shall give prompt notice thereof to Borrower.
(e) Each Lender may sell participations at its expense to one or more
banks or other entities as to all or a portion of its rights and obligations
under this Agreement; provided, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any Note issued to it for the
purpose of this Agreement, (iv) such participations shall be in a minimum amount
of $1,000,000 and shall include an allocable portion of such Lender's
Participation, and (v) Borrower, the Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and with regard to any and all
payments to be made under this Agreement; provided, that the participation
agreement between a Lender and its participants may provide that such Lender
will obtain the approval of such participant prior to such Lender's agreeing to
any amendment or waiver of any provisions of this Agreement which would (A)
extend the maturity of any Note, (B) reduce the interest rate hereunder, or (C)
increase the Revolving Credit Commitment of the Lender granting the
participation other than as permitted by Section 2.07, and (vi) the sale of any
such participations which require Borrower to file a registration statement with
the United States Securities and Exchange Commission or under the securities
regulations or laws of any state shall not be permitted.
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(f) Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, any Lender may assign all or any portion of its
rights and obligations under the Loan Documents and the Notes to any affiliate
of such Lender, and any Lender may pledge all or any portion of its interest
under the Loan Documents and the Notes to any Federal Reserve Bank as security
for obligations of such Lender to such Federal Reserve Bank, without the consent
of the Borrower, the Agent or any other Lender and without the payment of the
administrative fee referred to in Section 11.01(a).
11.02 Notices. Except as provided below, any notice shall be
conclusively deemed to have been received by any party hereto and be effective
on the day on which delivered to such party (against receipt therefor) at the
address set forth below or such other address as such party shall specify to the
other parties in writing (or, in the case of telephonic notice or notice by
telecopy, telegram or telex (where the receipt of such message is verified by
return) expressly provided for hereunder, when received at such telephone,
telecopy or telex number as may from time to time be specified in written or
verbal notice to the other parties hereto or otherwise received), or if sent
prepaid by certified or registered mail return receipt requested on the third
Business Day after the day on which mailed, addressed to such party at said
address:
(a) if to the Borrower:
Capstone Capital Corporation
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Agent:
NationsBank, National Association (South)
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Corporate Finance Department
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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with a copy to:
NationsBank, National Association
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx,
Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to NationsBank in its capacity as issuer of the
Letters of Credit:
NationsBank, National Association (South)
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Letter of Credit Department
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
11.03 Setoff. The Borrower agrees that the Agent and each Lender shall
have a lien for all the Obligations of the Borrower upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts
thereof, now or hereafter pledged, mortgaged, transferred or assigned to the
Agent or such Lender or otherwise in the possession or control of the Agent or
such Lender (other than for safekeeping) for any purpose for the account or
benefit of the Borrower and including any balance of any deposit account or of
any credit of the Borrower with the Agent or such Lender, whether now existing
or hereafter established, hereby authorizing the Agent and each Lender at any
time or times with or without prior notice to apply such balances or any part
thereof to such of the Obligations of the Borrower to the Lenders then past due
and in such amounts as they may elect, and whether or not the collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Agent or such Lender as
soon as the same may be put in transit to it by mail or carrier or by other
bailee.
11.04 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
commitment
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hereunder or the Borrower has continuing obligations hereunder unless otherwise
provided herein. Whenever in this Agreement, any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrower which are contained in this Agreement, the Notes
and the other Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.05 Expenses. The Borrower agrees (a) to pay or reimburse the Agent
for all its reasonable and customary out-of-pocket costs and expenses incurred
in connection with the preparation, negotiation and execution of, this Agreement
or any of the other Loan Documents (including travel expenses relating to
closing), and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable and customary fees and
disbursements of counsel to the Agent, as well as all such expenses and costs
arising in connection with any amendment, supplement or modification to this
Agreement or any other Loan Documents, (b) to pay or reimburse the Agent and the
Lenders for all their reasonable costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement and the other
Loan Documents, including without limitation, the reasonable fees and
disbursements of their counsel and any payments in indemnification or otherwise
payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Agent and the Lenders harmless from any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any failure to pay or delay in paying, documentary, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of this Agreement or any other Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, this Agreement or any other Loan
Documents, and (d) to pay, indemnify, and hold the Agent and the Lenders
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and the other Loan
Documents or in any respect relating to the transactions contemplated hereby or
thereby, (all the foregoing, collectively, the "indemnified liabilities");
provided, however, that the Borrower shall have no obligation hereunder with
respect to indemnified liabilities arising from (i) the willful misconduct or
gross negligence of or the willful breach of the Loan Documents by the party
seeking indemnification, (ii) legal proceedings commenced against the Agent or
any Lender by any security holder or creditor thereof arising out of and based
upon rights afforded any such security holder or creditor solely in its capacity
as such, (iii) any taxes imposed upon the Agent or any Lender other than the
documentary, stamp, excise and similar taxes described in clause (c) above or
any tax resulting from any
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Regulatory Change, which tax would be payable to Lenders by Borrower pursuant
to Article IV hereof, (iv) taxes imposed and costs and expenses incurred as a
result of a transfer or assignment of any Note, participation or assignment of
a portion of its rights or (v) any taxes imposed upon or any costs or expenses
incurred by any transferee of any Note. The agreements in this subsection
shall survive repayment of the Notes and all other Obligations hereunder and
termination of this Agreement.
11.06 Amendments. No amendment, modification or waiver of any provision
of this Agreement or any of the Loan Documents and no consent by the Lenders to
any departure therefrom by the Borrower shall be effective unless such
amendment, modification or waiver shall be in writing and signed by the Agent,
but only upon having received the written consent of the Required Lenders, and
the same shall then be effective only for the period and on the conditions and
for the specific instances and purposes specified in such writing; provided,
however, that, no such amendment, modification or waiver
(i) which changes, extends or waives any provision of Section
10.10 or this Section 11.06, the amount of or the due date of any
scheduled installment of or the rate of interest payable on any
Obligation or the amount of any fees payable to Lenders, changes the
definition of Required Lenders, which permits an assignment by
Borrower of its Obligations hereunder, which reduces the required
consent of Lenders provided hereunder (other than as provided in
Section 4.05 hereof), which increases, decreases or extends the
Revolving Credit Commitment of any Lender or which increases or
extends the Letter of Credit Facility or which waives any condition to
the making of any Loan shall be effective unless in writing and signed
by each of the Lenders; provided, however, the Required Lenders may in
their sole discretion waive any Default or Event of Default (other
than any Event of Default under Section 9.01(a), (b), (g) or (h));
(ii) which releases any Subsidiary from its Subsidiary
Guaranty shall be effective unless with the written consent of each of
the Lenders;
(iii) which affects the rights, privileges or obligations of
NationsBank as provider of Swing Line Loans and issuer of Letters of
Credit, shall be effective unless signed in writing by NationsBank; or
(iv) which affects the rights, privileges, immunities or
indemnities of the Agent shall be effective unless in writing and
signed by the Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has
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obtained the written consent of the Required Lenders. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances, except as otherwise
expressly provided herein. No delay or omission on any Lender's or the Agent's
part in exercising any right, remedy or option shall operate as a waiver of such
or any other right, remedy or option or of any Default or Event of Default.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.08 Waivers by Borrower. In any litigation in any court with respect
to, in connection with, or arising out of this Agreement, the Loans, any of the
Notes, any of the other Loan Documents, the Obligations, or any instrument or
document delivered pursuant to this Agreement or the other Loan Documents, or
the validity, protection, interpretation, collection or enforcement thereof, or
any other claim or dispute howsoever arising between the Borrower and the
Lenders or the Agent, the Borrower and each Lender and the Agent hereby waive,
to the extent permitted by applicable law, trial by jury in connection with any
such litigation.
The Borrower, the Agent and the Lenders believe that, inasmuch as this
Agreement and the transactions contemplated hereby have been entered into and
consummated outside the State of Alabama, such transactions constitute
transactions in interstate commerce, so that neither the Agent nor any of the
Lenders is required, solely by entering into this Agreement and consummating
the transactions contemplated hereby, to qualify to do business as a foreign
corporation within the State of Alabama. Notwithstanding the foregoing,
however, the Borrower hereby irrevocably waives all rights that it may have to
raise, in any action brought by any of the Lenders or the Agent to enforce the
rights of the Lenders and the Agent hereunder or under any of the other Loan
Documents, or the obligations of the Borrower hereunder or thereunder, any
defense which is based upon the failure of any of the Lenders or the Agent to
qualify to do business as a foreign corporation in the State of Alabama,
including, but not limited to, any defenses based upon Section 232 of the
Alabama Constitution of 1901, Section 10-2B-15.01 of the Code of Alabama
(1975) or Section 40-14-4 of the Code of Alabama (1975), or any successor
provision to any thereof. The foregoing waiver is made knowingly and
voluntarily and is a material inducement for the Agent and the Lenders to enter
into the transactions contemplated by this Agreement or any of the other Loan
Documents.
11.09 Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or
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any obligation of the Borrower, the Lenders or the Agent, arising prior to the
effective date of such termination, and the provisions hereof shall continue to
be fully operative until all transactions entered into or rights created or
obligations incurred prior to such termination have been fully disposed of,
concluded or liquidated and the Obligations arising prior to or after such
termination have been irrevocably paid in full. The rights granted to the
Agent for the benefit of the Lenders hereunder and under the other Loan
Documents shall continue in full force and effect, notwithstanding the
termination of this Agreement, until all of the Obligations have been paid in
full after the termination hereof (other than Obligations in the nature of
continuing indemnities or expense reimbursement obligations not yet due and
payable) or the Borrower has furnished the Lenders and the Agent with an
indemnification satisfactory to the Agent and each Lender with respect thereto.
All representations, warranties, covenants, waivers and agreements contained
herein shall survive termination hereof until payment in full of the
Obligations unless otherwise provided herein. Notwithstanding the foregoing,
if after receipt of any payment of all or any part of the Obligations, any
Lender is for any reason compelled to surrender such payment to any Person
because such payment is determined to be void or voidable as a preference,
impermissible setoff, a diversion of trust funds or for any other reason, this
Agreement shall continue in full force and the Borrower shall be liable to, and
shall indemnify and hold such Lender harmless for, the amount of such payment
surrendered until such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Lenders in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
11.10 Governing Law. ALL DOCUMENTS EXECUTED PURSUANT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF GEORGIA. THE BORROWER HEREBY SUBMITS TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF GEORGIA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE PURPOSES OF COLLECTION.
11.11 Indemnification. (a) In consideration of the execution and
delivery of this Agreement by the Agent and each Lender and the extension of the
Revolving Credit Commitments, the Borrower hereby indemnifies, exonerates and
holds the Agent and each Lender and each of their respective officers,
directors, employees and agents (collectively, the "Indemnified Parties") free
and harmless from and against any and all actions, causes of
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action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan (including any Swing Line Loan) or
supported by any Letter of Credit, except for any such Indemnified Liabilities
arising for the account of a particular Indemnified Party by reason of the bad
faith, gross negligence or willful misconduct of, or willful breach of the Loan
Documents by, such Indemnified Party or an officer, co-officer, director,
co-director, employee, co-employee, agent or co-agent of such Indemnified Party
or a transfer or disposition of a Note by an Indemnified Party, and if and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 11.11 or Section 7.15 against the indemnifying party, the
party entitled to such indemnification shall give written notice to the
indemnifying party promptly after the party entitled to indemnification
receives actual notice of any claim, action, suit, loss, cost, liability,
damage or expense incurred or instituted for which the indemnification is
sought. If requested by the Borrower in writing, and so long as no Default or
Event of Default shall have occurred and be continuing, such indemnitee shall
contest the validity, applicability and/or amount of such suit, action, or
cause of action to the extent such contest may be conducted in good faith on
legally supportable grounds. If any lawsuit or enforcement action is filed
against any party entitled to the benefit of indemnity under this Section
11.11, written notice thereof shall be given to the indemnifying party as soon
as practicable (and in any event within 15 days after the service of the
citation or summons). Notwithstanding the foregoing, the failure so to notify
the indemnifying party as provided in this Section 11.11 will relieve
indemnifying party from liability hereunder only if and to the extent that such
failure results in the forfeiture by the indemnifying party of substantive
rights and defenses. After such notice, if the indemnifying party shall
acknowledge in writing to the indemnified party that the indemnifying party
shall be obligated under the terms of its indemnity hereunder in connection
with such lawsuit or action, then, so long as no Default or Event of Default
shall occur and be continuing, the indemnifying party shall be entitled, if it
so elects, to take control of the defense and investigation of such lawsuit or
action and to employ and engage counsel of its own choice reasonably acceptable
to the indemnified party to handle and defend the same, at the indemnifying
party's cost, risk and
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expense, provided, however, that the indemnifying party and its counsel
shall proceed with diligence and in good faith with respect thereto. If (i)
the engagement of such counsel by the indemnifying party would present a
conflict of interest which would prevent such counsel from effectively
defending such action on behalf of the indemnified party, (ii) the defendants
in, or targets of, any such lawsuit or action include both the indemnified
party and indemnifying party, and the indemnified party reasonably concludes
that there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party, (iii) the indemnifying
party fails to assume the defense of the lawsuit or action or to employ counsel
reasonably satisfactory to such indemnified party, in either case in a timely
manner, or (iv) a Default or Event of Default shall occur and be continuing,
then such indemnified party may employ separate counsel to represent or defend
it in any such action or proceeding and the indemnifying party will pay the
fees and disbursements of such counsel, provided, however, that each indemnitee
shall endeavor, but shall not be obligated, in connection with any matter
covered by this Section 11.11 which also involves other indemnities, to use
reasonable efforts to avoid unnecessary duplication of efforts by counsel for
all indemnities and provided further, that in no event shall the Borrowers be
liable for the fees and expenses of more than one separate firm for the
indemnified parties. The indemnified party shall cooperate (with all out of
pocket costs and expenses associated therewith to be paid by the indemnifying
party) in all reasonable respects with the indemnifying party and such
attorneys in the investigation, trial and defense of such lawsuit or action and
any appeal arising therefrom; provided, however, that the indemnified party
may, at its own cost (except as set forth in, and in accordance with, the
foregoing sentence), participate in the investigation, trial and defense of
such lawsuit or action and any appeal arising therefrom. If the indemnifying
party has acknowledged to the indemnified party its obligation to indemnify
hereunder, the indemnified party, so long as no Default or Event of Default
shall have occurred and be continuing, shall not settle such lawsuit or
enforcement action without the prior written consent of the indemnifying party
and, if the indemnifying party has not so acknowledged its obligation, the
indemnified party shall not settle such lawsuit or enforcement action within 20
days' prior written notice to the indemnifying party.
11.12 Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context requires.
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11.13 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
11.14 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.15 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
11.16 Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
Georgia law, shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
CAPSTONE CAPITAL CORPORATION
WITNESS: By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
/s/ X. XXXXXX XxXXXXX Title: Vice President/Secretary/
------------------------- Treasurer
/s/ XXXXX X. XXXXX
-------------------------
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Agent for the Lenders
COMMITMENT:
$40,000,000
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
Lending Office:
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wire Transfer Instructions:
NationsBank, National Association (South)
Atlanta, Georgia
ABA# 000000000
Reference: CAPSTONE
Attention: Xxxxxxx Xxxxxx,
Agency Services
Account No.: 136621-010197
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AMSOUTH BANK OF ALABAMA
COMMITMENT:
$25,000,000
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
Lending Office:
AmSouth Bank of Alabama
0000 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx
Wire Transfer Instructions:
AmSouth Bank of Alabama
Birmingham, Alabama
ABA # 000000000
Reference: Acct #__________
CAPSTONE
Attention: Xxxx Xxxx
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CREDIT LYONNAIS NEW YORK BRANCH
COMMITMENT:
$25,000,000
By: /s/ PASCAL POUPELLE
-------------------------------------
Name: Pascal Poupelle
-----------------------------------
Title: Senior Vice President
----------------------------------
Lending Office:
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
Credit Lyonnais Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #0000-0000-0
Account #01-881-792-00000000
Reference: Capstone
Attention: Loan Servicing
---------------------
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NATIONAL CITY BANK, KENTUCKY
COMMITMENT:
$15,000,000
By: /s/
----------------------------------
Title: Vice President
-------------------------------
Lending Office:
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
National City Bank, Kentucky
Louisville, Kentucky
ABA # 0000-0000-0
Reference: CAPSTONE
Attention: Xxxxx Xxxxxx
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CREDITANSTALT CORPORATE FINANCE, INC.
COMMITMENT:
$15,000,000
By: /s/ XXXXX XXXX
----------------------------------
Name: Xxxxx Xxxx
--------------------------------
Title: Senior Associate
-------------------------------
By: /s/ XXXXXX XXXXXXX
----------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
Lending Office:
Atlanta, Georgia
------------------------------
-------------------------------------
Wire Transfer Instructions:
Chemical Bank
-----------------------------
New York, New York
-----------------------------
ABA # 000000000
--------------------
Reference: Creditanstalt, New York
------------------------
Attention:
-------------------
Account No. 000-0-00000
-------------
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000
XXX XXXX XX XXXX XXXXXX
COMMITMENT:
$10,000,000
By: /s/ XXXX XXXXXXX
--------------------------------
Name: Xxxx Xxxxxxx
------------------------------
Title: Relationship Manager
-----------------------------
Lending Office:
The Bank of Nova Scotia
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
The Bank of Nova Scotia
The Bank of Nova Scotia,
New York Agency
ABA # 000000000
For Further Credit to Account
0606634 Atlanta Agency
Attention: CAPSTONE
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FIRST COMMERCIAL BANK
COMMITMENT:
$10,000,000
By: /s/ A XXXX XXXXX
----------------------------------
Name: A Xxxx Xxxxx
--------------------------------
Title: First Vice President
-------------------------------
Lending Office:
First Commercial Bank
0000 X Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
First Commercial Bank
Birmingham, Alabama
ABA # 000000000
Reference: CAPSTONE
Attention: Xxxx Xxxxx or Xxxx Xxxx
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THE SUMITOMO BANK, LIMITED
COMMITMENT:
$10,000,000
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Assistant Vice President
--------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
The Sumitomo Bank, Limited
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ABA # 000000000
Reference: CAPSTONE
Attention: Xxxxx Xxxxxxxx
---------------
Account No. n/a
-------------
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EXHIBIT A
Applicable Commitment Percentages
Applicable
Lender Revolving Credit Commitment
------ Commitment Percentage
---------- ----------
NationsBank, N.A. (South) $ 40,000,000 26.666666667%
AmSouth Bank of Alabama 25,000,000 16.666666667%
Credit Lyonnais New York
Branch 25,000,000 16.666666667%
National City Bank, Kentucky 15,000,000 10.000000000%
Creditanstalt Corporate
Finance, Inc. 15,000,000 10.000000000%
The Bank of Nova Scotia 10,000,000 6.000000000%
First Commercial Bank 10,000,000 6.666666667%
The Sumitomo Bank, Limited 10,000,000 6.666666667%
------------ -------------
$150,000,000 100%
99
